Matthew Mark Heslep v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00040-CV

MATTHEW MARK HESLEP, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2008-1531-C1

ORDER OF REINSTATEMENT

By letter dated February 22, 2019, the Clerk of this Court notified appellant,

Matthew Mark Heslep, that this appeal was subject to dismissal because the original

filing fee had not been paid and warned appellant that the Court would dismiss the

appeal unless, within ten days from the date of the letter, appellant paid the filing fee or

obtained indigent status for the purpose of appeal. Ten days passed, and appellant did

not pay the filing fee for this appeal or obtain indigent status. Accordingly, we dismissed this appeal on March 13, 2019. See generally Heslep v. State, No. 10-19-00040-CV, 2019 Tex.

App. LEXIS 1997 (Tex. App.—Waco Mar. 13, 2019, no pet. h.) (mem. op.) (citing TEX. R.

APP. P. 42.3(c)).

On March 14, 2019, this Court received an “Affidavit of Indigency” and a “Motion

for Extension of Time to File a Docketing Statement” filed by appellant. It appears from

the content of these filings that appellant placed these filings in the prison mail system

on March 6, 2019, which predates our March 13, 2019 dismissal of this action. Because

appellant indicated in his “Affidavit of Indigency” that he was indigent in the trial court

and that his financial situation is unchanged, we hereby conclude that appellant

established his indigency in this appeal. And because the mailbox rule applies to

appellant’s affidavit that was placed in the prison mail system before our dismissal

opinion, we sua sponte withdraw our March 13, 2019 opinion and judgment dismissing

this case and reinstate this case to our docket. See TEX. R. APP. P. 9.5(c).

That said, we recognize that, in this appeal, appellant is attempting to appeal from

an August 24, 2018 withholding order. Even if this order is an appealable order under

Harrell, see Harrell v. State, 286 S.W.3d 315 (Tex. 2009), more than ninety days have passed

from the signing of the order; thus, it appears that Heslep’s notice of appeal dated

February 1, 2019 is untimely under the extended period of Texas Rule of Civil Procedure

306a. See TEX. R. CIV. P. 306a.

Heslep v. State Page 2 Therefore, pursuant to Texas Rules of Appellate Procedure 42.3 and 44.3, appellant

is notified that this case is subject to dismissal because it does not appear that his notice

of appeal is timely. Accordingly, the Court may dismiss this appeal unless, within 21

days from the date of this order, a response is filed showing grounds for continuing the

appeal.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Neill Order issued and filed April 10, 2019 Do not publish

Heslep v. State Page 3