Angel Jonathan Koenigstein v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-22-00684-CR

Angel Jonathan KOENIGSTEIN, Appellant

v.

The STATE of Texas, Appellee

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2020CR6833 Honorable Michael E. Mery, Judge Presiding

PER CURIAM

Sitting: Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice

Delivered and Filed: February 15, 2023

DISMISSED FOR WANT OF JURISDICTION

Appellant Angel Jonathan Koenigstein entered into a plea bargain with the State pursuant

to which he pleaded nolo contendere to murder. The trial court imposed sentence in the

underlying cause on July 8, 2022. Because appellant did not file a motion for new trial, the notice

of appeal was due by August 8, 2022. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time

to file the notice of appeal was due by August 22, 2022. See id. R. 26.3. Appellant filed a pro se 04-22-00684-CR

notice of appeal on October 6, 2022. On the same day, he filed a motion for leave to file the late

notice of appeal in the trial court.

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be

considered timely so as to invoke a court of appeals’ jurisdiction if: (1) it is filed within fifteen

days of the last day allowed for filing; (2) a motion for extension of time is filed in the court of

appeals within fifteen days of the last day allowed for filing the notice of appeal; and (3) the

court of appeals grants the motion for extension of time. See id. Because the clerk’s record

appeared to show that both the notice of appeal and the motion for extension of time were

untimely filed, on October 19, 2022, we ordered appellant to show cause in writing why this

appeal should not be dismissed for lack of jurisdiction. 1

On November 18, 2022, appellant’s newly appointed counsel filed a motion requesting an

extension of time to file the response. Counsel requested the extension in order to communicate

with appellant regarding “the factual and legal basis for the Notice of Appeal and Motion for

Leave to File Late Notice of Appeal.” We granted the motion, and extended appellant’s deadline

to file the response until December 19, 2022. On December 19, 2022, appellant’s appointed

counsel again requested an extension of time to file the response required by our October 19

order. Counsel’s motion stated that he has written to appellant and received no response. The

motion also noted that counsel has reviewed the clerk’s record and “has no reason to dispute

it[.]” We granted the motion, extending appellant’s deadline to file a response until February 3,

2023.

1 Our October 19 order also noted that the clerk’s record shows the trial court imposed sentence in accordance with the plea agreement and signed a certificate stating this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). Our order explained that we must dismiss an appeal “if a certification that shows the defendant has the right of appeal has not been made part of the record.” See id. R. 25.2(d). To date, an amended certification has not been made part of the record in this court.

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As of the date of this opinion, no response has been filed. Because the clerk’s record

shows that appellant’s notice of appeal and motion for extension of time were untimely filed, we

dismiss this appeal for want of jurisdiction. See id.; see also Ater v. Eighth Court of Appeals, 802

S.W.2d 241, 243 (Tex. Crim. App. 1991) (out-of-time appeal from final felony conviction may

be sought by filing writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal

Procedure).

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