Opinion
04-24-00318-CR
11-07-2024
Madison Lynn MCNUTT, Appellant v. The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2017CR9931 Honorable Christine Del Prado, Judge Presiding
ORDER
REBECA C. MARTINEZ, CHIEF JUSTICE
On August 19, 2024, we ordered the trial court to amend its certification of defendant's right of appeal. See TEX. R. APP. P. 25.2(d), 37.1. On September 26, 2024, the district clerk filed a supplemental clerk's record, containing the trial court's certification that this matter "is not a plea-bargain case, and the defendant has the right of appeal." We therefore retain this appeal on the docket of this court.
However, before we may proceed further, we must resolve whether the notice of appeal was timely. Appellant was indicted on September 14, 2017, for the offense of possession of a controlled substance with intent to deliver. See TEX. PENAL CODE ANN. §§ 481.113(c). Pursuant to a plea bargain, the trial court signed an order of deferred adjudication on November 30, 2017. Thereafter, the State filed a motion to adjudicate guilt, and, on March 22, 2024, the trial court adjudicated guilt and imposed a sentence of five years' confinement, probated for five years.
On April 29, 2024, appellant filed a "Motion for Leave to File Late Notice of Appeal" in this court. The motion consists of a printed form with sections filled in by hand. The motion states:
More than thirty (30) days have elapsed since sentence was imposed/suspended in open court in the above listed cause number. The Defendant will show that good cause exists for filing late notice [o]f appeal for the following reasons.
1. I have regular probation for the upcoming 5 years[.]
2. Existing medical conditions consist of damaged lung of my left side that I have trouble with my breathing.
3. I have a niece that also requires of my care.(handwritten portions in italics). The motion includes a signed declaration stating:
"I Madison McNutt, SID 1083497[, b]eing presently incarcerated in the Bexar County Adult Detention Center, San Antonio, Texas declare under Penalty of Perjury that the foregoing instrument is true and correct.
Signed on this the 23 day of April, 2024.(handwritten portions in italics).
The clerk's record also includes a second "Motion for Leave to File Late Notice of Appeal." Like the first motion, the second motion is on a form with handwritten additions. These additions are nearly identical to those in the first motion. The second motion was filed with the trial court clerk on May 3, 2024, and the motion includes a signed declaration that is the same as the first, except dated April 30, 2024.
Ascertaining whether this Court has jurisdiction is a threshold issue in every appeal. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 894 (Tex. Crim. App. 2002); Strange v. State, 258 S.W.3d 184, 185 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd). A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. See 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.; see TEX. R. APP. P. 26.3.
On this record, it appears that because appellant's sentence was imposed on March 22, 2024, and a timely motion for new trial was not filed, appellant's notice of appeal was due to be filed by April 22, 2024. See TEX. R. APP. P. 4.1(a); 26.2(a). However, appellant filed a "Motion for Leave to File Late Notice of Appeal" in the trial court on May 3, 2024. Even if we construe appellant's filing in the trial court as a notice of appeal, the notice was late by eleven days. See Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007) ("We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction.").
While late under the initial deadline, appellant's notice of appeal potentially could be timely if appellant qualifies for an extension of the deadline, pursuant to Texas Rule of Appellate Procedure 26.3. See TEX. R. APP. P. 26.3. Under Rule 26.3, we may extend the deadline to file a notice of appeal, "if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b)." Rule 10.5(b) requires that a motion for extension must state" the facts relied on to reasonably explain the need for an extension." Id. R. 10.5(b)(1)(C), (b)(2)(A). "The term 'reasonably explain' means a plausible statement of circumstances indicating that the failure to file within the appropriate deadline was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance." Castillo v. State, 369 S.W.3d 196, 202 n.22 (Tex. Crim. App. 2012) (citations omitted).
Appellant's "Motion for Leave to File Late Notice of Appeal," filed in this court on April 29, 2024, gives the following reasons as "good cause" for appellant's late filing of the notice of appeal:
1. I have regular probation for the upcoming 5 years[.]
2. Existing medical conditions consist of damaged lung of my left side that I have trouble with my breathing.
3. I have a niece that also requires of my care.
It is ORDERED that the State may file a response to the appellant's motion on or before November 18, 2024. The State's response, if one is filed, should address our jurisdiction over this appeal and whether the State opposes appellant's "Motion for Leave to File Late Notice of Appeal," filed in this court on April 29, 2024. If the State files a response, appellant may file a reply no later than ten days after the date the State's response is filed.