Matthew Mark Heslep v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00040-CV
MATTHEW MARK HESLEP,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2008-1531-C1
ORDER OF REINSTATEMENT
By letter dated February 22, 2019, the Clerk of this Court notified appellant,
Matthew Mark Heslep, that this appeal was subject to dismissal because the original
filing fee had not been paid and warned appellant that the Court would dismiss the
appeal unless, within ten days from the date of the letter, appellant paid the filing fee or
obtained indigent status for the purpose of appeal. Ten days passed, and appellant did
not pay the filing fee for this appeal or obtain indigent status. Accordingly, we dismissed
this appeal on March 13, 2019. See generally Heslep v. State, No. 10-19-00040-CV, 2019 Tex.
App. LEXIS 1997 (Tex. App.—Waco Mar. 13, 2019, no pet. h.) (mem. op.) (citing TEX. R.
APP. P. 42.3(c)).
On March 14, 2019, this Court received an “Affidavit of Indigency” and a “Motion
for Extension of Time to File a Docketing Statement” filed by appellant. It appears from
the content of these filings that appellant placed these filings in the prison mail system
on March 6, 2019, which predates our March 13, 2019 dismissal of this action. Because
appellant indicated in his “Affidavit of Indigency” that he was indigent in the trial court
and that his financial situation is unchanged, we hereby conclude that appellant
established his indigency in this appeal. And because the mailbox rule applies to
appellant’s affidavit that was placed in the prison mail system before our dismissal
opinion, we sua sponte withdraw our March 13, 2019 opinion and judgment dismissing
this case and reinstate this case to our docket. See TEX. R. APP. P. 9.5(c).
That said, we recognize that, in this appeal, appellant is attempting to appeal from
an August 24, 2018 withholding order. Even if this order is an appealable order under
Harrell, see Harrell v. State, 286 S.W.3d 315 (Tex. 2009), more than ninety days have passed
from the signing of the order; thus, it appears that Heslep’s notice of appeal dated
February 1, 2019 is untimely under the extended period of Texas Rule of Civil Procedure
306a. See TEX. R. CIV. P. 306a.
Heslep v. State Page 2
Therefore, pursuant to Texas Rules of Appellate Procedure 42.3 and 44.3, appellant
is notified that this case is subject to dismissal because it does not appear that his notice
of appeal is timely. Accordingly, the Court may dismiss this appeal unless, within 21
days from the date of this order, a response is filed showing grounds for continuing the
appeal.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Order issued and filed April 10, 2019
Do not publish
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