Joshua Molina v. State

• Court: Court of Appeals of Texas
• Decided: April 3, 2019
• Docket: 04-19-00190-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas April 3, 2019

No. 04-19-00190-CR

Joshua MOLINA, Appellant

v.

The STATE of Texas, Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR0078 Honorable Catherine Torres-Stahl, Judge Presiding

ORDER The trial court imposed sentence in the underlying cause on February 14, 2019. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed March 18, 2019. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on April 1, 2019. TEX. R. APP. P. 26.3. Appellant filed a notice of appeal on March 22, 2019, which was post-marked on March 19, 2019, but appellant did not file a motion for extension of time.

A timely notice of appeal is necessary to invoke a court of appeals’ 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’ 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. See id. It appears the notice of appeal was untimely filed in this appeal. But see Warner v. Glass, 135 S.W.3d 681, 685–86 (Tex. 2004) (“Because a pro se inmate must rely on prison authorities, the Court held that the notice of appeal was deemed filed when the inmate handed it over to the prison authorities for forwarding to the court clerk.”). It is therefore ORDERED that appellant show cause in writing within two weeks from the date this order is signed why this appeal should not be dismissed for lack of jurisdiction. See id.; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out- of-time appeal from final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure). _________________________________ Rebeca C. Martinez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 3rd day of April, 2019.

___________________________________ KEITH E. HOTTLE, Clerk of Court