Daniel Solis Deluna v. State

• Court: Court of Appeals of Texas
• Decided: May 30, 2014
• Docket: 04-14-00366-CR
• Status: Published

Opinion

The State of TexasAppellee/s

Fourth Court of Appeals San Antonio, Texas May 30, 2014

No. 04-14-00366-CR

Daniel Solis DELUNA, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR8127 Honorable Ray Olivarri, Judge Presiding

ORDER The trial court imposed sentence on March 27, 2014; the appellant had thirty days to file a motion for new trial. See TEX. R. APP. P. 21.4(a); Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993). Because the clerk’s record in this appeal does not show appellant timely filed a motion for new trial, the notice of appeal was due to be filed on April 28, 2014. See TEX. R. APP. P. 26.2(a)(1). The appellant’s notice of appeal was filed with the trial court on May 7, 2014. A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a defendant’s notice of appeal is timely filed if filed within thirty days after (1) the day sentence is imposed or suspended in open court, or (2) the day the trial court enters an appealable order. See TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. In this case, the appellate record does not show that the appellant’s notice of appeal was timely filed. A late notice of appeal may be considered timely so as to invoke a court of appeal’s 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. Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure). Therefore, we ORDER appellant to show cause in writing within fifteen days from the date of this order why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918 S.W.2d at 522; Ater, 802 S.W.2d at 243.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 30th day of May, 2014.

___________________________________ Keith E. Hottle Clerk of Court