EX PARTE BYRON LAWRENCE GRAVES, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 0799290 IN THE CRIMINAL

DISTRICT COURT NUMBER 4 TARRANT COUNTY

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery with a deadly weapon and sentenced to seventy-seven years imprisonment. In an unpublished opinion, the Second Court of Appeals dismissed Applicant's appeal for want of jurisdiction because Applicant's pro se notice of appeal was untimely filed. Graves v. State, No. 02-03-329-CR (Tex. App. - Fort Worth, no pet.).

In the instant application, Applicant contends that he was denied his right to appeal because his trial counsel failed to timely file a notice of appeal even though Applicant had requested that counsel do so.

Adopting Applicant's proposed findings of facts and conclusions of law, the trial court has found that Applicant is entitled to an out-of-time appeal. We agree. Applicant is granted the opportunity to file an out-of-time appeal from his conviction in sentence in cause number 0799290 from the 4th Judicial District Court of Tarrant County, Texas. Applicant is ordered returned to that point in 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. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues. We hold that should Applicant desire to prosecute an appeal, he must take affirmative steps to see that a written notice of appeal is given within thirty days after the mandate of this Court has issued.

DELIVERED: September 14, 2005

DO NOT PUBLISH