Orlowski v. State

Full title: Michael ORLOWSKI, Appellant v. THE STATE OF TEXAS, Appellee

Court: Fourth Court of Appeals San Antonio, Texas

Date published: Sep 11, 2013

No. 04-13-00590-CR (Tex. App. Sep. 11, 2013)

Opinion

No. 04-13-00590-CR

2013-09-11

Michael ORLOWSKI, Appellant v. THE STATE OF TEXAS, Appellee

Patricia O. Alvarez

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 12-1394-CR

William Old, Judge Presiding

ORDER

The trial court imposed sentence on July 22, 2013. Appellant had thirty days to file a motion for new trial. See TEX. R. APP. P. 21.4(a); Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993). Because the clerk's record does not show Appellant timely filed a motion for new trial, the notice of appeal was due to be filed on August 21, 2013. See TEX. R. APP. P. 26.2(a)(1). Appellant's notice of appeal was filed with the trial court on August 23, 2013.

A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a defendant's notice of appeal is timely filed if filed within thirty days after (1) the day sentence is imposed or suspended in open court, or (2) the day the trial court enters an appealable order. See TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. In this case, the appellate record does not show that Appellant's notice of appeal was timely filed.

A late notice of appeal may be considered timely so as to invoke a court of appeal's 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.

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).

Therefore, we ORDER Appellant to show cause in writing within fifteen 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.

____________________________

Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of September, 2013.

____________________________

Keith E. Hottle

Clerk of Court