             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-80,368-01


                       EX PARTE BRIAN CHARLES JONES, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 36853CR/A IN THE 40TH DISTRICT COURT
                               FROM ELLIS 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 evading arrest

or detention and was sentenced to life imprisonment.

        Applicant contends that his counsel rendered ineffective assistance because he failed to

timely file a notice of appeal. Trial counsel submitted an affidavit in which he states that Applicant

at all times wanted to pursue an appeal and that counsel’s failure to timely file notice of appeal was

in no way Applicant’s fault. Counsel states that he mistakenly believed that notice of appeal had

been filed at the same time as a motion for new trial but only later learned that the notice of appeal
could not be located.

        The trial court has determined that a one-page notice of appeal was stapled to the back of an

amended motion to quash the indictment found in the court’s file, but that the notice itself was not

file-stamped and contains no certificate of service. The trial court finds that the district clerk did not

forward the notice of appeal that was stapled to the motion to the court of appeals. The trial court

also finds that Applicant wishes to appeal his conviction.

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

judgment of conviction in Cause No. 36853CR/A from the 40th District Court of Ellis 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: October 30, 2013
Do not publish
