Durey Alghaylan v. State

• Court: Court of Appeals of Texas
• Decided: February 10, 2014
• Docket: 05-14-00001-CR
• Status: Published

Opinion

Order entered February 10, 2014

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00001-CR

DURAY ALGHAYLANY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F12-61854-T

ORDER The Court has before it the State’s January 30, 2014 motion to dismiss the appeal. In the

motion, the State asserts that sentence was imposed in open court of November 6, 2013. The

State further asserts that the only notice of appeal contained in the clerk’s record is file-stamped

December 19, 2013, but is not signed by appellant. Additionally, nothing in the record reflects

when or if appellant mailed the notice of appeal. This Court, on January 2, 2014, received a

typed notice of appeal that bears appellant’s name typed at the bottom. It arrived at the Court in

an envelope post-marked December 27, 2013. The Court cannot determine if this is a copy of a

notice of appeal that was also filed with the Dallas County District Clerk or one filed in addition

to appellant’s filings in the trial court. Additionally, the document contained in the clerk’s

record serves to appoint the Dallas County Public Defender’s Office to represent appellant. Accordingly, this Court ORDERS the trial court to make findings regarding the

following:

Whether appellant filed a notice of appeal, pro se or through counsel, on or before

December 6, 2013. In making this determination, the trial court shall also make findings

regarding the following.

(1) Whether the Dallas County District Clerk’s Office was open on December 6, 2013;

(2) Whether appellant’s notice of appeal was mailed to the trial court and, if so, the post-

mark date on the envelope;

(3) whether appellant’s notice of appeal was received first by the Fifth District Court of

Appeals and then forwarded to the Dallas County District Clerk; and

(4) if mailed, the date appellant delivered his notice of appeal to correctional officers for

mailing.

We ORDER the trial court to transmit a record containing its written findings of fact, any

supporting documentation, and any orders to this Court within THIRTY DAYS of the date of

this order.

The Court will defer ruling on the State’s motion to dismiss until it has received the trial

court’s findings.

We ABATE the appeal to allow the trial court to comply with this order. The appeal will

be reinstated thirty days from the date of this order or when the findings are received.

/s/ LANA MYERS JUSTICE