Erasmo Alvarez v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2018
• Docket: 04-18-00337-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas June 22, 2018

No. 04-18-00337-CR

Erasmo ALVAREZ, Appellant

v.

The STATE of Texas, Appellee

From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2015CR4559 Honorable Joey Contreras, Judge Presiding

ORDER On May 29, 2018, we informed appellant by written order that it appeared we had no jurisdiction over this appeal because his notice of appeal was untimely filed. We noted that the trial court imposed sentence in this case on March 21, 2018, and, because appellant did not file a timely motion for new trial, the notice of appeal was due on April 20, 2018. The clerk’s record showed that appellant’s pro se notice of appeal was not file-stamped by the trial court clerk until May 15, 2018. We ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.

On June 18, 2018, appellant’s court-appointed counsel filed a response, asserting that the notice of appeal was timely filed under the “prisoner mail-box rule.” In this response, counsel points out that appellant’s pro se notice of appeal shows that appellant did “verify and declare under penalty of perjury” that the notice was mailed to the trial court clerk on April 18, 2018. Counsel further represents that appellant was incarcerated in the Dominguez Unit of the TDCJ- ID on that date. The Texas Court of Criminal Appeals has held that “the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.” Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010). “[W]e decline to penalize a pro se inmate who timely delivers a document to the prison mailbox.” Id.

We have examined the pro se notice of appeal contained in the clerk’s record and its corresponding envelope. In the pro se notice of appeal, appellant “certify[ies] that on April 18, 2018 a true and correct copy of appellant[’]s motion for appeal notice was mailed to the district clerk of Bexar County Texas . . . .” Appellant also “verif[ies] and declare[s] under penalty of perjury that the foregoing statements are true and correct executed on this the 18th day of April 2018.” However, the corresponding envelope is not post-marked until May 14, 2018.

We conclude that the record supports the application of the prisoner mailbox rule in this case. Appellant’s pro se notice of appeal is deemed filed on April 18, 2018. We conclude that appellant’s pro se notice of appeal was timely filed and we have jurisdiction over this appeal. We RETAIN this appeal on our docket and we LIFT the suspension of appellate deadlines in this appeal.

On June 4, 2018, court reporter Maria Fattahi filed part of the reporter’s record. The remainder of reporter’s record has not been filed. We order court reporter Brooke Wagner to file the remainder of the reporter’s record 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 22nd day of June, 2018.

___________________________________ KEITH E. HOTTLE, Clerk of Court