Opinion
No. 05-14-00001-CR
02-10-2014
DURAY ALGHAYLANY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F12-61854-T
ORDER
The Court has before it the State's January 30, 2014 motion to dismiss the appeal. In the motion, the State asserts that sentence was imposed in open court of November 6, 2013. The State further asserts that the only notice of appeal contained in the clerk's record is file-stamped December 19, 2013, but is not signed by appellant. Additionally, nothing in the record reflects when or if appellant mailed the notice of appeal. This Court, on January 2, 2014, received a typed notice of appeal that bears appellant's name typed at the bottom. It arrived at the Court in an envelope post-marked December 27, 2013. The Court cannot determine if this is a copy of a notice of appeal that was also filed with the Dallas County District Clerk or one filed in addition to appellant's filings in the trial court. Additionally, the document contained in the clerk's record serves to appoint the Dallas County Public Defender's Office to represent appellant.
Accordingly, this Court ORDERS the trial court to make findings regarding the following:
Whether appellant filed a notice of appeal, pro se or through counsel, on or before December 6, 2013. In making this determination, the trial court shall also make findings regarding the following.
(1) Whether the Dallas County District Clerk's Office was open on December 6, 2013;
(2) Whether appellant's notice of appeal was mailed to the trial court and, if so, the postmark date on the envelope;
(3) whether appellant's notice of appeal was received first by the Fifth District Court of Appeals and then forwarded to the Dallas County District Clerk; and
(4) if mailed, the date appellant delivered his notice of appeal to correctional officers for mailing.
We ORDER the trial court to transmit a record containing its written findings of fact, any supporting documentation, and any orders to this Court within THIRTY DAYS of the date of this order.
The Court will defer ruling on the State's motion to dismiss until it has received the trial court's findings.
We ABATE the appeal to allow the trial court to comply with this order. The appeal will be reinstated thirty days from the date of this order or when the findings are received.
LANA MYERS
JUSTICE