O P I N I O N
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07, § 3, et seq., V.A.C.C.P. Applicant was convicted of assault and the punishment was assessed at confinement for five years. The appeal of this conviction was dismissed because notice of appeal had not been filed in a timely manner. Jarrels v. State, No. 01-01-00721-CR (Tex. App. - Houston [1st], delivered October 25, 2001, no pet.). In the instant application it is contended that Applicant was denied his right to appeal due to his attorney's ineffectiveness. The trial court entered findings of fact and conclusions of law in which it was found that Applicant's desire to appeal was communicated to his lawyer in a timely manner but that the lawyer did not protect his client's appellate rights by ensuring that the notice of appeal was filed in a timely manner, thereby ensuring his client's right to appeal. No recommendation was made although the record reflects that Applicant is entitled to relief.
Article 26.04 (a), V.A.C.C.P., requires that counsel appointed to represent the accused shall, "[R]epresent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties or replaced by other counsel." The duty to perfect appeal attaches whether counsel is appointed or retained. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). Knowing that Applicant wanted to appeal, counsel had the duty to timely file a motion for new trial or give notice of appeal unless he had been relieved of his duties by the trial court or replaced by other counsel. We find Applicant is entitled to relief.
Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 870069 from the 176th District Court of Harris County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.
DO NOT PUBLISH
DELIVERED: June 11, 2003