Israel Gonzales v. State

Opinion

NUMBER 13-19-00308-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

ISRAEL GONZALES, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 156th District Court of Bee County, Texas. ____________________________________________________________

ORDER

Before Justices Benavides, Longoria, and Perkes Order Per Curiam

Appellant Israel Gonzales filed a notice of appeal from cause number B-17-2164-

0-CR-B in the 156th District Court of Bee County, Texas after the trial court orally denied

his application for habeas corpus relief. On September 19, 2019, this Court dismissed

the appeal on grounds there was no final appealable judgment. See Gonzales v. State,

No. 13-19-00308-CR, 2019 WL 4493703, at *1 (Tex. App.—Corpus Christi Sept. 19,

2019, no pet. h.) (mem. op., not designated for publication). Appellant has now filed an amended motion for rehearing on grounds that the trial court has now rendered a

judgment that is subject to appeal. According to a supplemental clerk’s record, the trial

court denied appellant’s application for writ of habeas corpus by final judgment signed on

October 10, 2019.

While a late notice of appeal fails to invoke the jurisdiction of a court of appeals,

an early notice of appeal may be considered timely under certain circumstances. Smith

v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018). The Texas Rules of Appellate

Procedure provide:

In a criminal case, a prematurely filed notice of appeal is effective and deemed filed on the same day, but after, sentence is imposed or suspended in open court, or the appealable order is signed by the trial court. But a notice of appeal is not effective if filed before the trial court makes a finding of guilt or receives a jury verdict.

TEX. R. APP. P. 27.1(b). This rule ensures “that a party will not be denied its appeal just

because it mistakenly files its notice too quickly. Smith, 559 S.W.3d at 531.

The Court, having fully examined and considered appellant's amended motion for

rehearing is of the opinion that, in the interest of justice, appellant's amended motion for

rehearing should be granted. See TEX. R. APP. P. 27.1(b); Smith, 559 S.W.3d at 531.

Accordingly, we withdraw our previous opinion and judgment. Said cause remains

pending before the Court. The appeal will proceed in accordance with the timelines

established by the Texas Rules of Appellate Procedure. All remaining pending motions

are dismissed as moot.

It is so ORDERED.

PER CURIAM

2 Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the 25th day of October, 2019.