The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,068
EX PARTE JAIME MARSHALL BROWN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
TRIAL COURT CAUSE NUMBER 401-80716-01
401 st JUDICIAL DISTRICT COURT OF COLLIN COUNT
Per Curiam.
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., Texas Code of Criminal Procedure. Applicant
was convicted of the felony offense of indecency with a child, and the punishment was
assessed at five years in prison. Applicant's direct appeal was dismissed for lack of
jurisdiction because the notice of appeal was not timely. Brown v. State , No. 05-03-00129-CR (Tex. App. - Dallas July 18, 2003, no pet.).
Applicant contends that he was denied his right to appeal. Based on affidavits from
trial and appellate counsel, the trial court entered findings of fact and conclusions of law
recommending that Applicant be granted an out-of-time appeal because appellate counsel
failed to file the notice of appeal in timely manner despite Applicant's stated desire to pursue
an appeal. The record also shows that counsel did not seek an extension of time for filing
the notice of appeal pursuant to Rule 26.3 of the Texas Rules of Appellate Procedure.
Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from
his conviction in cause number 401-80716-01 from the 401 st District Court of Collin 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DO NOT PUBLISH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: January 26, 2005