             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,150



                          EX PARTE MACEO WAITES, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. F10734-A IN THE 115 TH JUDICIAL DISTRICT COURT
                         FROM MARION 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 aggravated

robbery and sentenced to sixty-five years’ imprisonment.

        Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance

because he failed to request preparation of a statement of facts, and failed to file an appellate brief,

thereby depriving Applicant of a meaningful appeal. See Ex parte Perez, 479 S.W.2d 283, 284 (Tex.

Crim. App. 1972). We remanded this application to the trial court for findings of fact and
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conclusions of law.

          The trial court held a habeas hearing, at which Applicant’s appellate counsel, who also

represented Applicant at trial, testified. At the hearing, appellate counsel conceded that he had been

appointed to represent Applicant on direct appeal, that he believed that there was little or no error

committed during the trial itself, and that he did not file an appellate brief. Counsel testified that he

advised Applicant’s family that they should retain a different attorney to represent Applicant on

direct appeal, and that he believed that they “were going to try to come up with the money to have

the case reviewed[.]” However, appellate counsel gave no explanation for why he accepted the

appointment to represent Applicant on appeal, or for his failure to request preparation of a statement

of facts or file an appellate brief, other than Applicant’s inability to pay. It appears that counsel’s

decisions not to request preparation of a statement of facts or file an appellate brief were not

strategic, but were economic decisions. See Ex parte Briggs, 187 S.W.3d 458, 467 (Tex. Crim. App.

2005).

          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. F10734-A from the 115th Judicial District Court of

Marion 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.
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Delivered: May 6, 2009
Do Not Publish
