Opinion
No. 04-20-00269-CR
07-02-2020
Robert RUIZ, Appellant v. The STATE of Texas, Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR3679
Honorable Mary D. Roman, Judge Presiding
ORDER
"A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction." 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. Id. "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.
In the present case, the trial court signed an order granting judgment nunc pro tunc on April 2, 2020. Because appellant did not file a motion for new trial, his notice of appeal was due on Monday, May 4, 2020. See TEX. R. APP. P. 26.2(a)(1) (stating that a notice of appeal must be filed 30 days after the day the trial court enters an appealable order); TEX. R. APP. P. 4.1 (stating that time periods falling on a Saturday, Sunday, or legal holiday are extended to the end of the next day that is not a Saturday, Sunday, or legal holiday). A motion for extension of time to file appellant's notice of appeal was due on May 19, 2020. TEX. R. APP. P. 26.3 (stating an appellate court may extend the time to file a notice of appeal if an appellant files the notice of appeal and a motion for extension of time within 15 days after the deadline for filing the notice of appeal). The clerk's record indicates appellant filed his notice of appeal on May 19, 2020. The clerk's record contains the envelope in which appellant's notice of appeal was mailed and this envelope bears a May 19, 2020 postmark. See Taylor v. State, 424 S.W.3d 39, 43-44 (Tex. Crim. App. 2014) (explaining "the mailbox rule" and "the prisoner mailbox rule"). However, the clerk's record shows that appellant did not file a motion for extension of time to file his notice of appeal. Because appellant did not timely file a motion for extension of time to file his notice of appeal, we lack jurisdiction over this appeal. See Olivo, 918 S.W.2d at 522.
We, therefore, ORDER appellant to show cause on or before July 23, 2020 why this appeal should not be dismissed for lack of jurisdiction. If appellant does not respond in the time provided, this appeal will be dismissed for lack of jurisdiction.
/s/_________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of July, 2020.
/s/_________
MICHAEL A. CRUZ, Clerk of Court