             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,839



              EX PARTE REYNALDO ROBERTO ESPARZA, Applicant



         ON APPLICATION FOR A WRIT OF HABEAS CORPUS
  CAUSE NO. 2005CRN166-D3(A) IN THE 341ST JUDICIAL DISTRICT COURT
                       FROM WEBB COUNTY



        Per curiam.

                                           OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of

murder, two counts of aggravated kidnapping, and two counts of engaging in organized criminal

activity and was sentenced to ninety-nine years’ imprisonment.

        Applicant contends that he was denied the right to appeal his conviction because his trial

counsel failed to timely file a notice of appeal. Although Applicant timely expressed his desire to

appeal, trial counsel did not withdraw and appellate counsel was not appointed until after the
appellate deadline had passed. Although appellate counsel filed a notice of appeal, Applicant’s

appeal was dismissed as untimely. Esparza v. State, No. 04-05-00922-CR (Tex. App. – San

Antonio, January 25, 2006).

        The habeas record indicates that trial counsel failed to timely file a notice of appeal.

Although counsel states in an affidavit that it was his understanding that Applicant’s family would

retain appellate counsel, he did not move to withdraw from the representation until after the appellate

deadline had passed, and he did not file a notice of appeal or a motion for a new trial. Ex parte Axel,

757 S.W.2d 369, 374 (Tex. Crim. App. 1988).

        We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal

of the judgment of conviction in Cause No. 2005CRN166-D3(A) from the 341st Judicial District

Court of Webb County. Applicant is ordered returned to that time at which he may give a written

notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. All time

limits shall be calculated as if the sentence had been imposed on the date on which the mandate of

this Court issues. We hold that, should Applicant desire to prosecute an appeal, he must take

affirmative steps to file a written notice of appeal in the trial court within 30 days after the mandate

of this Court issues.



Delivered: August 22, 2012
Do Not Publish
