EX PARTE STEVE E. GAITHER (original)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. AP-76,286
EX PARTE STEVE E. GAITHER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2007-418,617-A IN THE 364TH JUDICIAL DISTRICT COURT 
FROM LUBBOCK COUNTY 
Per curiam.
O P I N I O N

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 with intent to deliver a controlled substance and sentenced to twenty-two years' imprisonment.

Applicant contends that his counsel rendered ineffective assistance because he failed to timely file a notice of appeal. Counsel has submitted an affidavit conceding that he was aware of Applicant's desire to appeal, but did not timely file a motion for new trial or a notice of appeal. The trial court has determined that trial counsel failed to timely file a notice of appeal. 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. 2007-418,617-A from the 364th Judicial District Court of Lubbock 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.

Delivered: February 10, 2010

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