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Weems v. State

Court of Appeals of Texas, Fourth District, San Antonio

January 29, 2014

Daniel James WEEMS, Appellant
v.
The STATE of Texas, Appellee

From the 38th Judicial District Court, Medina County, Texas Trial Court No. 12-12-11120-CR Honorable Camile G. Dubose, Judge Presiding

ORDER

Catherine Stone, Chief Justice

The trial court imposed sentence in the underlying cause on September 11, 2013. Because appellant did not file a timely motion for new trial, the notice of appeal was due to be filed October 11, 2013.[1] Tex.R.App.P. 26.2(a)(1). A motion for extension of time to file the notice of appeal was due on October 28, 2013. Tex.R.App.P. 26.3. On October 28, 2013, appellant filed a notice of appeal[2] and a motion for extension of time in the trial court.

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 appellant filed the notice of appeal and motion for extension of time within the fifteen day grace period, appellant filed his motion for extension of time with the trial court instead of with this court. It is therefore ORDERED that appellant show cause in writing within two weeks from the date of this order why this appeal should not be dismissed for lack of jurisdiction.[3]See id.; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) ...


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