Justin William Roach v. State

• Court: Court of Appeals of Texas
• Decided: July 23, 2019
• Docket: 05-19-00735-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed July 23, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00735-CR No. 05-19-00737-CR

JUSTIN WILLIAM ROACH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause Nos. 366-81027-2012 & 366-81187-2015

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Reichek Opinion by Justice Osborne Before the Court are appellant’s June 25, 2019 motions for extension of time to file these

appeals and the State’s June 25, 2019 motions to dismiss the appeals for want of jurisdiction. We

will deny appellant’s motions, grant the State’s motions, and dismiss the appeals.

On October 11, 2018, in cause no. 05-19-00735-CR, the trial court adjudicated appellant’s

guilt for the offense of stalking, assessed punishment at six years’ confinement, and placed

appellant on community supervision for six years. On December 13, 2018, in cause no. 05-19-

00737-CR, the trial court adjudicated appellant’s guilt for the offense of insurance fraud in an

amount of $1,500 or more but less than $20,000, assessed punishment at two years’ confinement

in state jail, and placed appellant on community supervision for three years. On April 18, 2019, the trial court issued an order modifying appellant’s conditions of

community supervision to require him to serve time in a substance abuse felony punishment

facility.1 On June 7, 2019, appellant filed motions for new trial. On June 20, 2019, appellant filed

notices of appeal, and on June 25, 2019, motions for extension of time to file the appeals.

In his motions to extend, appellant concedes that his appeals are untimely, but he asks the

Court to extend the time to file his appeals by seventy days because appellate counsel was not

appointed until June 4, 2019—after the deadline for filing a notice of appeal. In its motions to

dismiss, the State responds that the Court should dismiss the appeals because the notices of appeal,

motions for new trial, and motions for extension of time to file the appeals are all untimely and

because the trial court’s modification of appellant’s community supervision is not an appealable

order.

A timely filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v.

State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of

appeal, the Court has no option other than to dismiss the appeal. Id. A defendant perfects an

appeal by filing with the trial court clerk, within thirty days after the date sentence was imposed,

or within ninety days after sentencing if the defendant timely filed a motion for new trial, a written

notice of appeal showing his or her desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a).

The trial court entered the challenged order on April 18, 2019. Thus, appellant’s motions

for new trial were due on May 20, 2019.2 See TEX. R. APP. P. 21.4(a). Appellant’s June 7, 2019

motions for new trial were untimely.

Because the motions for new trial were untimely, they did not extend to ninety days the

time to file appellant’s notices of appeal. See TEX. R. APP. P. 26.2(a)(2). Thus, appellant’s notices

1 The trial court’s April 18, 2019 order is not before the Court. The parties agree this order is the basis for the appeal. 2 Because the thirtieth day following April 18, 2019 was a Saturday, the time to file the motion for new trial extends to Monday, May 20, 2019. See TEX. R. APP. P. 4.1(a).

–2– of appeal were due on May 20, 2019. See TEX. R. APP. P. 4.1(a), 26.2(a)(1). Appellant filed his

notices of appeal on June 20, 2019.

The rules of appellate procedure allow the time to file a notice of appeal to be extended if

the party files, within fifteen days of the filing deadline, both the notice of appeal and a motion to

extend the time to file the notice of appeal. See TEX. R. APP. P. 10.5(b), 26.3. Any motion to

extend the time to file the notice of appeal would be due in this case on or before June 4, 2019.

See TEX. R. APP. P. 4.1(a), 26.3.3 Thus, appellant’s June 25, 2019 motions to extend the time to

file the notices of appeal were untimely.

Because appellant’s notices of appeal and motions to extend the time to file the notices of

appeal were untimely, we conclude we have no jurisdiction over these appeals. See TEX. R. APP.

P. 26.2(a)(1); Castillo, 369 S.W.3d at 198.

Moreover, an order modifying the conditions of community supervision is not appealable

unless community supervision has been revoked and the modification order affects the validity of

the revocation. See Davis v. State, 195 S.W.3d 708, 710–11 (Tex. Crim. App. 2006); Basaldua v.

State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); see also Madden v. State, No. 05-19-00431-CR,

2019 WL 1760286, at *1 (Tex. App.—Dallas Apr. 22, 2019, no pet.) (not designated for

publication). Thus, even if appellant’s notices of appeal had been timely, we would not have

jurisdiction to review the trial court’s order modifying the conditions of community supervision.

See Basaldua, 558 S.W.2d at 5.

We deny appellant’s motions to extend time to file the notices of appeal. We grant the

State’s motions to dismiss the appeal.

3 Citing Ex parte Reynoso, 257 S.W.3d 715, 721–22 (Tex. Crim. App. 2008), the State contends the last date for extension under rule 4.1 should be calculated from Saturday, May 18, 2019. We note that Reynoso involved the calculation of the inception date for an extension of time to file a habeas application under article 11.071. The court of criminal appeals applied the language of article 11.071 §4(b) to find that the date of the extension in a habeas filed under article 11.071 should be measured from the date the application was originally due and not as extended by the intervention of a weekend or holiday. The court of criminal appeals expressly declined to apply rule 4.1. See Reynoso, 257 S.W.3d at 722.

–3– We dismiss the appeals.

/Leslie Osborne/ LESLIE OSBORNE JUSTICE

Do Not Publish Tex. R. App. P. 47.2(b)

190735F.U05

–4– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUSTIN WILLIAM ROACH, Appellant On Appeal from the 296th Judicial District Court, Collin County, Texas No. 05-19-00735-CR V. Trial Court Cause No. 366-81027-2012. Opinion delivered by Justice Osborne. THE STATE OF TEXAS, Appellee Justices Schenck and Reichek participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED.

Judgment entered this 23rd day of July, 2019.

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUSTIN WILLIAM ROACH, Appellant On Appeal from the 296th Judicial District Court, Collin County, Texas No. 05-19-00737-CR V. Trial Court Cause No. 366-81187-2015. Opinion delivered by Justice Osborne. THE STATE OF TEXAS, Appellee Justices Schenck and Reichek participating.

Based on the Court’s opinion of this date, the appeal is DISMISSED.

–6–