Allison D. Lozano v. State

Court of Appeals of Texas

Allison D. Lozano v. State

DecidedSeptember 12, 2016

Docket04-16-00465-CR

StatusPublished

This text of Allison D. Lozano v. State (Allison D. Lozano v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Allison D. Lozano v. State, (Tex. Ct. App. 2016).

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Fourth Court of Appeals San Antonio, Texas September 12, 2016

No. 04-16-00465-CR

Allison D. LOZANO, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR1746 The Honorable Mark Luitjen, Judge Presiding

ORDER On August 10, 2016, we informed appellant by written order that it appeared we had no jurisdiction over this appeal because her notice of appeal was untimely filed. “Timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). “If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.” Id. We ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

On August 25, 2016, appellant’s court-appointed counsel filed a response to our show cause order, asserting that appellant’s notice of appeal was timely filed under the prisoner mailbox rule. On September 7, 2016, appellant’s court-appointed counsel filed an amended response. The amended response states that appellant was unable to provide an affidavit in support of her assertion of the prisoner mailbox rule because appellant was transferred to the Texas Department of Corrections.

Nothing in the record before us supports the application of the prisoner mailbox rule in this case. The clerk’s record does not contain a post-marked envelope showing that the notice of appeal was received by mail. Nor does the notice of appeal contain a certificate of service.

We, therefore, grant appellant a thirty-day extension of time to file an affidavit or an unsworn declaration under penalty of perjury setting forth the facts that support her response. Any such affidavit or declaration must be filed in this court no later than thirty (30) days from the date of this order. _________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of September, 2016.

___________________________________ Keith E. Hottle Clerk of Court

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Fourth Court of Appeals San Antonio, Texas September 12, 2016

No. 04-16-00465-CR

Allison D. LOZANO, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR1746 The Honorable Mark Luitjen, Judge Presiding

ORDER On August 10, 2016, we informed appellant by written order that it appeared we had no jurisdiction over this appeal because her notice of appeal was untimely filed. “Timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal.” Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). “If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.” Id. We ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

On August 25, 2016, appellant’s court-appointed counsel filed a response to our show cause order, asserting that appellant’s notice of appeal was timely filed under the prisoner mailbox rule. On September 7, 2016, appellant’s court-appointed counsel filed an amended response. The amended response states that appellant was unable to provide an affidavit in support of her assertion of the prisoner mailbox rule because appellant was transferred to the Texas Department of Corrections.

Nothing in the record before us supports the application of the prisoner mailbox rule in this case. The clerk’s record does not contain a post-marked envelope showing that the notice of appeal was received by mail. Nor does the notice of appeal contain a certificate of service.

We, therefore, grant appellant a thirty-day extension of time to file an affidavit or an unsworn declaration under penalty of perjury setting forth the facts that support her response. Any such affidavit or declaration must be filed in this court no later than thirty (30) days from the date of this order. _________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of September, 2016.

___________________________________ Keith E. Hottle Clerk of Court

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