Opinion
No. 04-18-00033-CR
02-28-2018
Stephen Tony MARACLE, Appellant v. The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR3994W
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
On January 10, 2018, appellant filed a pro se notice of appeal relating to the judgment signed by the trial court on June 6, 2017. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed on July 6, 2017. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on July 21, 2017; appellant filed his motion for extension of time to file a late notice of appeal on January 18, 2018. TEX. R. APP. P. 26.3. Accordingly, the record shows that appellant's notice of appeal and motion for extension of time are both untimely. See TEX. R. APP. P. 26.2(a)(1), 26.3. When a notice of appeal and motion for extension of time are not filed within the fifteen-day grace period allowed by Rule 26.3 as in this case, the appellate court lacks jurisdiction. TEX. R. APP. P. 26.3; see Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (late notice of appeal invokes appellate court's jurisdiction in a criminal case only if (i) it is filed within fifteen days of the last day allowed for filing the notice of appeal, (ii) a motion for extension of time is filed in the court of appeals within the fifteen-day grace period, and (iii) the court of appeals grants the motion for extension of time); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (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).
Therefore, it is ORDERED that appellant show cause in writing why the appeal should not be dismissed for lack of jurisdiction within fourteen (14) days from the date of this order.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of February, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court