Francisco Javier Escamilla Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 22, 2023
• Docket: 04-22-00801-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-22-00801-CR

Francisco Javier ESCAMILLA Jr., Appellant

v.

The STATE of Texas, Appellee

From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2020CRF000097D3 Honorable Rebecca Ramirez Palomo, Judge Presiding

PER CURIAM

Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

Delivered and Filed: February 22, 2023

DISMISSED FOR LACK OF JURISDICTION

The trial court imposed its sentence on March 23, 2021. Because appellant did not file a

motion for new trial, the notice of appeal was due on April 22, 2021. TEX. R. APP. P. 26.2(a)(1). A

motion for extension of time to file the notice of appeal was due on May 7, 2021. TEX. R. APP. P.

26.3. Appellant did not file his notice of appeal until November 28, 2022. Because the notice of

appeal was untimely filed in this appeal, this court ordered appellant to show cause in writing by 04-22-00801-CR

December 27, 2022, why this appeal should not be dismissed for lack of jurisdiction. Appellant

did not file a response.

A timely notice of appeal is necessary to invoke a court of appeals’s 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’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. Id. Accordingly, because appellant did not file a timely

notice of appeal or request for extension of time to file a notice of appeal, this appeal is dismissed

for lack 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).

Moreover, after this court issued its December 13, 2022 show cause order, new counsel for

appellant filed a notice of appearance and a motion for leave to file a response to the show cause

order. However, since filing the motion for leave, appellant filed a motion to withdraw his notice

of appeal and a motion to dismiss his appeal, signed by appellant and counsel.

DO NOT PUBLISH

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