            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                             NOS. WR-78,751-01 & WR-78,751-02


                           EX PARTE JORGE CUEVAS, Applicant


             ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
       CAUSE NOS. 007-2780-06-A & 007-0676-07 IN THE 7TH DISTRICT COURT
                            FROM SMITH COUNTY


       Per curiam. K ELLER, P.J., dissented.

                                          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 these applications for writs of habeas corpus. Ex

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

sexual assault of a child and tampering with a government record. He was sentenced to twenty years’

and five years’ imprisonment, respectively. The court of appeals dismissed his appeals for want of

jurisdiction. Cuevas v. State, Nos. 12-07-00351-CR & 12-07-00352-CR (Tex. App.—Tyler Oct. 3,

2007) (unpublished).

       Applicant contends that his counsel rendered ineffective assistance because she failed to
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timely file notice of appeal.

        The trial court initially determined that counsel failed to timely file notice of appeal.

However, upon remand, the trial court found that Applicant waived appeal as part of a bargain with

the State in which Applicant pleaded open to the trial judge. Based on our independent review of the

record, we find no evidence in the habeas record supporting the finding that waiver of appeal was

part of the initial plea agreement between the parties. Ex parte Broadway, 301 S.W.3d 694, 695–96

(Tex. Crim. App. 2009).

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

judgments of conviction in Cause No. 007-2780-06-A & 007-0676-07 from the Seventh District

Court of Smith 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. Within

ten days of the issuance of this opinion, the trial court shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall immediately

appoint an attorney to represent Applicant on direct 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.

        Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: May 22, 2013
Do not publish
