Opinion
No. 04-16-00524-CR
12-13-2016
Steven Phillip CHERRY, Appellant v. The STATE of Texas, Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR6408
Honorable Sid L. Harle, Judge Presiding
ORDER
A jury found Appellant Steven P. Cherry guilty of burglary as charged in count II of the indictment, and the trial court sentenced Appellant to thirty-years' confinement in the Texas Department of Criminal Justice—Institutional Division. The sentence was imposed on August 9, 2016, and Appellant timely filed a motion for new trial on September 6, 2016. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
Because Appellant timely filed a motion for new trial, his notice of appeal was due to be filed on November 7, 2016. See TEX. R. APP. P. 26.2(a)(2). The clerk's record contains the trial court's certification of defendant's right to appeal, see id. R. 25.2(a)(2), but it does not appear to contain a notice of appeal, see id. R. 26.2(a).
"A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction." Olivo, 918 S.W.2d at 522. If a defendant timely filed a motion for new trial, the defendant must file the notice of appeal "within 90 days after the day sentence is imposed or suspended in open court." See TEX. R. APP. P. 26.2(a)(2); Olivo, 918 S.W.2d at 522. In this case, the appellate record does not show that Appellant timely filed a notice of appeal.
A late notice of appeal may be considered timely and invoke a court of appeal's jurisdiction if it meets the following requirements:
(1) it is filed within fifteen days of the last day allowed for filing,Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a 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).
(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.
We ORDER Appellant to show cause in writing within THIRTY DAYS of the date of this order why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918 S.W.2d at 522; Ater, 802 S.W.2d at 243.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of December, 2016.
/s/_________
Keith E. Hottle
Clerk of Court