Opinion
No. 04-19-00010-CR
01-24-2019
Joshua Jakob SMITH, Appellant v. The STATE of Texas, Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. DC-6454
Honorable N. Keith Williams, Judge Presiding
ORDER
On January 7, 2019, appellant filed a motion for extension of time to file a notice of appeal referring to the following trial court cause numbers: (1) DC-6453, 216th District Court, Gillespie County; (2) DC-6454, 216th District Court, Gillespie County; (3) A-17272, 216th District Court, Kerr County; and (4) A-17273, 216th District Court, Kerr County. In the motion, appellant stated his motion for new trial in each of the trial court cause numbers was denied on December 10, 2018.
Based on information provided by the trial court clerk, it appears the trial court imposed sentence in DC-6453 and DC-6454 on September 24, 2018, and in A-17272 and A-17273 on September 26, 2018. Assuming a timely motion for new trial was filed, the notice of appeal was due to be filed in DC-6453 and DC-6454 on December 24, 2018, and in A-17272 and A-17273 on December 26, 2018. TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal in DC-6453 and DC-6454 was due to be filed on January 8, 2019, and in A-17272 and A-17273 on January 10, 2019. TEX. R. APP. P. 26.3.
Based on information provided by the trial court clerk, it does not appear appellant filed a notice of appeal in any of the underlying causes. As previously noted, he filed his motion for extension of time on January 7, 2019.
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. See id. Because appellant failed to file a notice of appeal in the trial court cause numbers, and the deadline for filing a notice of appeal has passed, it does not appear appellant can invoke this court's appellate jurisdiction.
It is therefore ORDERED that appellant show cause in writing within two weeks from the date this order is signed why these appeals should not be dismissed for lack of jurisdiction. See id.; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from 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).
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 24th day of January, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court