Jesus Gonzalez v. State

Opinion

ACCEPTED 00000 FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 14-15-00901-CR 10/16/2015 10:14:59 AM CHRISTOPHER PRINE CLERK

IN THE FOURTEENTH COURT OF APPEALS OF TEXAS October 16, 2015

JESUS GONZALES § CASE NO. _______________ § § VS. § On Appeal From Harris County § Cause No. 1351489 § 184th District Court THE STATE OF TEXAS §

APPELLANT’S MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL

Appellant, Jesus Gonzales, moves for an extension of time to file notice of

appeal, under TEX. R. APP. P. 10.5(b) and TEX. R. APP. P. 26.3.

I. TRIAL COURT PROCEEDINGS

On September 1, 2015, Mr. Gonzales was sentenced to 15 years in prison after

the court granted a motion to adjudicate guilt. On October 5, 2015, while in custody,

he mailed a request for a lawyer to be appointed for an appeal. Counsel was appointed

on October 15, 2015.

II. PROCEEDINGS IN THIS COURT

The notice of appeal was due October 1, 2015. Mr. Gonzales’ retained counsel

did not file a notice of appeal, however, and apparently did not notify him that he did

not file it. Appellate counsel is filing this motion within the 15 days permitted by Rule

26.3, on the grounds that Mr. Gonzales had no way to know that his trial counsel did

not file a notice of appeal on his behalf or to know that a notice needed to be filed at all. Counsel is filing motion this within a day of being appointed, in order to preserve

Mr. Gonzales’ right to an appeal, if he has such right. Because the court’s file already

had been sent to storage, counsel could not determine before the deadline whether or

not Mr. Gonzales has a right to appeal. The clerk has requested the file, but counsel

cannot wait to review it before filing this motion, because today is the last day for filing

the notice of appeal.

III.

In the exercise of due diligence, counsel was unable to file a timely notice of

appeal because she was appointed after the deadline for filing it. This motion is not filed

for purposes of delay, but so that justice may be done.

PRAYER

Appellant respectfully requests that this motion be granted and that the Court

permit an extension of time until October 16, 2015 to file a notice of appeal.

Respectfully submitted,

ALEXANDER BUNIN Chief Public Defender Harris County Texas

/s/ Cheri Duncan ______________________________ CHERI DUNCAN Assistant Public Defender Harris County Texas State Bar No. 06210500 1201 Franklin, 13th Floor Houston Texas 77002 2 (713) 368-0016 (713) 368-9278 (Fax) cheri.duncan@pdo.hctx.net

Attorney for Appellant, JESUS GONZALES

CERTIFICATE OF SERVICE

I certify that a copy of Appellant’s Motion to Extend Time to File Notice of

Appeal was served electronically on the Appellate Division of the Harris County

District Attorney’s Office, 1201 Franklin St, 6th Floor, Houston, TX on October 16,

2015.

/s/ Cheri Duncan ____________________________________ CHERI DUNCAN