Sean Earl v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 3, 2021
• Docket: 04-21-00267-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas August 3, 2021

No. 04-21-00267-CR

Sean EARL, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR4828W The Honorable Jennifer Pena, Judge Presiding

ORDER

The trial court imposed sentence in the underlying cause on May 14, 2021. Because appellant did not file a motion for new trial, the notice of appeal was due by June 13, 2021. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due by June 28, 2021. See id. R. 26.3. Appellant filed a notice of appeal on June 21, 2021, 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. Further, when a notice of appeal is filed within the fifteen-day period, but no timely motion for extension of time is filed, the appellate court lacks jurisdiction. Id.

Having reviewed the record, it appears that the notice of appeal was untimely filed, and no motion for extension of time was filed. We therefore ORDER appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction on or before September 1, 2021. 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, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 3rd day of August, 2021.

___________________________________ MICHAEL A. CRUZ, Clerk of Court