Jason Shane Moses v. the State of Texas ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00114-CR
JASON SHANE MOSES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th District Court
Upshur County, Texas
Trial Court No. 19274
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
Jason Shane Moses filed an untimely notice of appeal from the trial court’s judgment
convicting him of evading arrest or detention with a vehicle. We dismiss the appeal for want of
jurisdiction.
Sentence was imposed in this matter on June 15, 2022. While a motion for new trial was
filed, that motion was not filed until August 25, 2022, making it untimely. Consequently,
Moses’s notice of appeal, to be timely, was due on or before July 15, 2022. See TEX. R. APP. P.
26.2(a)(1).
Moses’s notice of appeal was filed by the Upshur County District Clerk’s Office on
August 17, 2022, which is well beyond the July 15 deadline. While the Texas Court of Criminal
Appeals has clearly articulated that “pleadings of pro se inmates shall be 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), it has also clearly stated that those pleadings are still
subject to the requirements of Rule 9.2(b) of the Texas Rules of Appellate Procedure, id. at 342;
see TEX. R. APP. P. 9.2(b).
Rule 9.2(b) has three requirements: (i) the notice was sent to the proper clerk by
United States Postal Service or a commercial delivery service; (ii) the notice was
placed in an envelope or wrapper properly addressed and stamped; and (iii) the
notice was deposited in the mail or delivered to a commercial delivery service on
or before the last day for filing.
Anderson v. State, 625 S.W.3d 128, 131 (Tex. Crim. App. 2021). There is nothing in the record
before this Court to indicate when Moses provided his notice of appeal to prison officials for
mailing or to indicate that his pleading complied with the other requirements of Rule 9.2(b).
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Consequently, Moses’s appeal of his conviction in this matter was untimely. The Texas Court of
Criminal Appeals has expressly held that, without a timely filed notice of appeal, we cannot
exercise jurisdiction over an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.
1996); see also Slaton v. State, 981 S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998) (per curiam).
We notified Moses’s appellate counsel that the notice of appeal appeared to be untimely
and that the appeal was subject to dismissal for want of jurisdiction. We afforded Moses the
opportunity to respond to our letter, through counsel, and to demonstrate how we had jurisdiction
over the appeal notwithstanding the noted defect. In response to our letter, Moses’s attorney
argued that, because Moses “sent his request on July 14, 2022,” the fact that his request was not
transmitted to the trial court until August 16, 2022, was beyond his control. Yet, there is nothing
in the record to indicate that Moses delivered his request to prison officials for mailing on
July 14, 2022. Moreover, there is nothing in the record to indicate that Moses complied with the
other requirements of Rule 9.2(b). See TEX. R. APP. P. 9.2(b).
Because Moses did not timely file his notice of appeal, we dismiss the appeal for want of
jurisdiction.
Charles van Cleef
Justice
Date Submitted: October 18, 2022
Date Decided: October 19, 2022
Do Not Publish
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