Brandy Darlene Aiello v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00734-CR

Brandy Darlene AIELLO, Appellant

v.

The STATE of Texas, Appellee

From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR1259W Honorable Lori I. Valenzuela, Judge Presiding

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: December 19, 2018

DISMISSED FOR LACK OF JURISDICTION

On February 5, 2018, appellant entered a plea of “nolo contendere” to the charge of

continuous family violence and was placed on community supervision by the trial court. On April

18, 2018, appellant filed a motion to withdraw her plea which was subsequently denied by the trial

court on July 9, 2018. The same day, the trial court signed the Trial Court’s Certification of

Defendant’s Right to Appeal certifying appellant’s right to appeal the trial court’s decision on the

motion to withdraw plea. Thus, absent a timely motion for new trial, the notice of appeal was due

August 8, 2018, and a motion for extension of time to file the notice of appeal was due August 23, 04-18-00734-CR

2018. See TEX. R. APP. P. 26.2(a)(a)(1); R. 26.3. Appellant, however, filed a pro se “Motion for

Leave to File Late Notice of Appeal” on October 11, 2018. On October 22, 2018, this court issued

an order directing appellant to show cause why this appeal should not be dismissed for lack of

jurisdiction. Counsel filed a response in which he concedes appellant’s notice of appeal was

untimely filed.

A late notice of appeal invokes the appellate court’s jurisdiction in a criminal case only if

(1) it is filed within fifteen days of the last day allowed for filing the notice of appeal, (2) a motion

for extension of time is filed in the court of appeals within the fifteen-day grace period, and (3) the

court of appeals grants the motion for extension of time. Olivo v. State, 918 S.W.2d 519, 522 (Tex.

Crim. App. 1996). This court may not extend the time to file a notice of appeal unless a motion

for extension of time is filed in the appellate court within fifteen (15) days after the deadline for

filing the notice of appeal. See TEX. R. APP. P. 26.3. When a notice of appeal and a motion for

extension of time are not filed within the fifteen-day grace period, the appellate court lacks

jurisdiction. Id.; Olivo, 918 S.W.2d at 522; but see Ater v. Eighth Court of Appeals, 802 S.W.2d

241, 243 (Tex. Crim. App. 1991) (an out-of-time appeal from a final felony conviction may be

sought by filing a writ of habeas corpus in the trial court pursuant to article 11.07 of the Texas

Code of Criminal Procedure). Accordingly, this appeal is dismissed for lack of jurisdiction.

Do not publish

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