             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,676



                           EX PARTE MARCUS PENA, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. 10-7-25,340-D-2 IN THE 377TH JUDICIAL DISTRICT COURT
                        FROM VICTORIA 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 one count of

aggravated robbery and one count of capital murder, and sentenced to life imprisonment.

        Applicant contends that his appellate counsel rendered ineffective assistance because he

failed to timely file a notice of appeal. Appellate counsel filed an affidavit in which he conceded that

he miscalculated the deadline for filing the notice of appeal.

        The trial court has determined that appellate counsel failed to timely file a notice of appeal.
                                                                                                     2

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

of conviction in Cause No. 10-7-25,340-D from the 377th Judicial District Court of Victoria 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.



Delivered: November 9, 2011
Do Not Publish
