             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,265



              EX PARTE STANLEY WAYNE KIRKPATRICK, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 2004-474-C2 IN THE 54TH DISTRICT COURT
                         FROM MCLENNAN COUNTY



      Per curiam. P RICE, J., filed a concurring opinion in which J OHNSON, K EASLER
and C OCHRAN, JJ., joined.

                                           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 possession of a

controlled substance and sentenced to two years’ imprisonment.

        Applicant contends that he was denied his right to an appeal. On September 16, 2009, we

remanded this application for findings of fact and conclusions of law and specifically directed the

trial court to order counsel to file an affidavit in response to Applicant’s claim. On November 23,

2009, we remanded this application for further findings and conclusions because the trial court failed
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to order counsel to file an affidavit. On the second remand, counsel responded in an affidavit that

after Applicant was sentenced, counsel told the trial court that Applicant intended to appeal and

requested that the trial court appoint appellate counsel. He also said that the trial court granted his

motion to “substitute out.” Counsel did not file a notice of appeal, however, and the trial court did

not appoint appellate counsel until April 21, 2009, well after the deadline for filing a timely notice

of appeal. The trial court made findings of fact and concluded that counsel’s performance was not

deficient and that Applicant “could be entitled to an out-of-time appeal.”

        We conclude that counsel’s performance was deficient and that Applicant is entitled to an

out-of-time appeal. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (“We also hold

that trial counsel, retained or appointed, has the duty, obligation and responsibility to consult with

and fully to advise his client concerning meaning and effect of the judgment rendered by the court,

his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps

to pursue an appeal, as well as expressing his professional judgment as to possible grounds for

appeal and their merit, and delineating advantages and disadvantages of appeal”); Jones v. State, 98

S.W.3d 700, 703 (Tex. Crim. App. 2003) (“If the defendant decides to appeal, the attorney must

ensure that written notice of appeal is filed with the trial court”).

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

judgment of conviction in Cause No. 2004-474-C2 from the 54th Judicial District Court of

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

issues.



Delivered: December 16, 2009
Do Not Publish
