Opinion
No. 10-17-00308-CR
11-08-2017
ERNEST EARL WASHINGTON, JR., Appellant v. THE STATE OF TEXAS, Appellee
From the 54th District Court McLennan County, Texas
Trial Court No. 2016-1709-C2
ORDER
Ernest Earl Washington, Jr. appealed a conviction rendered against him on August 16, 2017. The appeal was dismissed by this Court because it appeared Washington's notice of appeal was untimely. See Washington v. State, No. 10-17-00308-CR, 2017 Tex. App. LEXIS 9337 (Tex. App.—Waco Oct. 4, 2017, no pet. h.) (not designated for publication). Washington filed a motion for rehearing, attaching an affidavit from Washington that asserted he timely placed his notice of appeal with a jailer to be mailed. The State filed a response asserting that it is not opposed to the relief requested in Washington's motion.
Actually, the motion for rehearing was quite extraordinary. It evidenced a lot of work by appellant's counsel to demonstrate how and when the pro se notice of appeal was filed. The motion included a timeline of events supported by both documentary evidence and sworn statements. It is clear that counsel expended substantial time in an effort to have his client's case addressed on the merits as opposed to being dismissed.
Pleadings of pro se inmates are deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk. Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010). Based on case law, the exhibits, and Washington's affidavit, Washington's notice of appeal was timely filed.
Accordingly, Washington's motion is granted, the Court's opinion and judgment issued on October 4, 2017 are withdrawn, and this appeal is reinstated.
The appellate record is due 30 days from the date of this Order, and Washington's docketing statement is due 14 days from the date of this Order. The appellate timetable will otherwise proceed as established by the Rules of Appellate Procedure.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Motion granted
Appeal reinstated
Order issued and filed November 8, 2017