Uchechukwu Diogu Ukariwe v. State

• Court: Court of Appeals of Texas
• Decided: August 16, 2019
• Docket: 05-19-00950-CR
• Status: Published

Opinion

Order entered August 16, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00950-CR

UCHECHUKWU DIOGU UKARIWE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F17-76605-Q

ORDER On June 20, 2019, the trial court adjudicated appellant’s guilt for terroristic threat and

assessed punishment at five years in prison. Appellant’s pro se notice of appeal, postmarked

July 22, 2019, was filed in the trial court on July 30, 2019 and in this Court on August 12, 2019.

Absent a motion for new trial, a notice of appeal in a criminal case must be filed in the

trial court within 30 days after the day sentence is imposed in open court. TEX. R. APP. P.

26.2(a)(1). A document received within ten days after the filing deadline is considered timely

filed if (1) it was sent to the proper clerk by United States Postal Service (2) in an envelope

properly addressed and stamped and (3) it was deposited in the mail on or before the last day for

filing. TEX. R. APP. P. 9.2(b). Appellant’s notice of appeal was due thirty days after the trial court’s June 20, 2019

judgment—July 20, 2019. That day, however, was a Saturday; therefore, appellant’s notice of

appeal was due July 22, 2019. See TEX. R. APP. P. 4.1(a). And because appellant mailed his

notice of appeal to the trial court in a properly addressed and stamped envelope that was

postmarked July 22, 2019, his notice of appeal was timely filed when received on July 30, 2019.

See TEX. R. APP. P. 9.2(b); see also Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App.

2010) (the “prisoner mailbox rule” provides that a pro se prisoner is deemed to have filed his

properly addressed notice of appeal at the time it is delivered to the appropriate prison authorities

for forwarding to the clerk of the convicting court).

We ORDER the trial court to conduct a hearing to determine whether appellant is

entitled to court-appointed counsel in this appeal. If the trial court finds that appellant is entitled

to court-appointed counsel, we ORDER the trial court to appoint an attorney to represent

appellant in the appeal. If the trial court finds that appellant is not entitled to court-appointed

counsel, the trial court shall determine whether appellant will retain counsel to represent him in

the appeal and, if so, the name, State Bar number, and contact information for retained counsel.

We ORDER the trial court to transmit a record of the hearing, including findings of fact,

any orders, and any supporting documentation, to this Court within THIRTY DAYS of the date

of this order.

We ABATE the appeal to allow the trial court to comply with the order. The appeal will

be reinstated thirty days from the date of this order or when the findings are received, whichever

is earlier.

/s/ LANA MYERS JUSTICE