We granted appellant an out-of-time appeal, not out-of-time motion for new trial. Appellant's claim was that he was denied an appeal, and the basis for our order was a finding that he was deprived of an appeal. Appellant had the opportunity to file a motion for new trial, and in fact, had done so after his convictions. The order's reference to "all time limits" ⁽¹⁾ should be read in conformity with the purpose of the order - to grant a new appeal. This type of reference in our orders is a housekeeping measure designed to set the deadlines for the appellate process and is not intended to afford the defendant a second opportunity to file a motion for new trial. Had we intended to accomplish the latter, we could have added a sentence authorizing such a motion. ⁽²⁾ As it stands, however, our order unambiguously stated that appellant "must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued." ⁽³⁾ Because he failed to do so, the court of appeals properly dismissed the appeal.

I respectfully dissent.

Date filed: January 24, 2007

Publish

1. Ex parte Mestas, No. 74, 858; 74, 859; 74,860 (Tex. Crim. App., Jan. 14, 2004)(not designated for publication).

2. Compare Ex parte Shields, 550 S.W.2d 670, 672 (Tex. Crim. App. 1976)(on original submission)(granting out-of-time motion for new trial) with id. at 677 (on rehearing)(granting out-of-time appeal).

3. Mestas, supra.