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McDaniel v. State

Court of Appeals of Texas, Fourth District, San Antonio
Jan 19, 2022
No. 04-21-00515-CR (Tex. App. Jan. 19, 2022)

Opinion

04-21-00515-CR

01-19-2022

Patrick MCDANIEL, Appellant v. The STATE of Texas, Appellee


DO NOT PUBLISH

From the 437th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CR-10059 Honorable Melisa C. Skinner, Judge Presiding

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

MEMORANDUM OPINION

PER CURIAM

DISMISSED FOR LACK OF JURISDICTION

Appellant Patrick McDaniel filed a notice of appeal on November 10, 2021. His notice of appeal does not include the judgment or order he wishes to appeal. See Tex. R. App. P. 25.2(c)(2). The only order in the clerk's record is a "Magistrate Order for Mental Illness or Intel[l]ectual Disability Assessment" signed on August 19, 2021.

We ordered appellant to clarify whether he seeks to appeal the August 19, 2021 "Magistrate Order for Mental Illness or Intel[l]ectual Disability Assessment," and he did not respond. Because this is the only order in the record, we assume appellant seeks to appeal this order.

A timely notice of appeal is necessary to invoke this court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In the absence of a timely motion for new trial, a defendant must file a notice of appeal within thirty days after the day the trial court enters an appealable order. Tex.R.App.P. 26.2(a). A late notice of appeal may be considered timely so as to invoke our 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. See Olivo, 918 S.W.3d at 522. Because appellant did not file a motion for new trial, the notice of appeal was due to be filed on September 18, 2021. See Tex. R. App. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on October 3, 2021. See id. R. 26.3. Appellant, however, filed his notice of appeal on November 10, 2021, and he did not file a motion for extension of time.

Because appellant did not timely file a notice of appeal, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant did not respond. Accordingly, we dismiss this appeal for lack of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that if appeal is not timely perfected, court of appeals does not obtain jurisdiction to address merits of appeal, and court may take no action other than to dismiss appeal; court may not suspend rules to alter time for perfecting appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs out-of-time appeals from felony convictions).


Summaries of

McDaniel v. State

Court of Appeals of Texas, Fourth District, San Antonio
Jan 19, 2022
No. 04-21-00515-CR (Tex. App. Jan. 19, 2022)
Case details for

McDaniel v. State

Case Details

Full title:Patrick MCDANIEL, Appellant v. The STATE of Texas, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jan 19, 2022

Citations

No. 04-21-00515-CR (Tex. App. Jan. 19, 2022)