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Bernal v. State

Court of Appeals of Texas, Fourth District, San Antonio

January 16, 2014

Stephen Anthony BERNAL, Appellant
v.
The STATE of Texas, Appellee

From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR7017 Honorable Olin B. Strauss, Judge Presiding

ORDER

Catherine Stone, Chief Justice

Appellant filed a document entitled Motion for Leave to File Late Notice of Appeal in the trial court; however, appellant did not file a notice of appeal. 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. Although the Texas Court of Criminal Appeals may consider appellant's filing of the motion in determining whether appellant should be entitled to an out-of-time appeal, see 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), we do not construe the motion as a notice of appeal. See Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio 2008, no pet.); Rivera v. State, 940 ...


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