Richard Lares v. State ( 2015 )


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  •                                                                       The State of TexasAppellee
    Fourth Court of Appeals
    San Antonio, Texas
    Wednesday, May 13, 2015
    No. 04-15-00183-CR
    Richard LARES,
    Appellant
    v.
    The STATE of Texas,
    Appellee
    From the 399th Judicial District Court, Bexar County, Texas
    Trial Court No. 2006CR10110
    Honorable Juanita A. Vasquez-Gardner, Judge Presiding
    ORDER
    On April 7, 2015, we ordered Appellant, an inmate, to show cause why this court has
    jurisdiction in this appeal because Appellant’s notice of appeal appeared to be untimely. The
    trial court signed a Judgment Nunc Pro Tunc on January 26, 2015, Appellant’s notice of appeal
    was due on February 25, 2015, but his notice of appeal was not filed until March 19, 2015.
    Appellant, now represented by court-appointed counsel, filed a response.
    Appellant has been incarcerated since 2009 and is still incarcerated. In his pro se notice
    of appeal, Appellant “avers that he sent Motion to Arrest Judgment on February 26, 2015 a day
    within the 30 days to file.” In paragraph I of his pro se Motion to Arrest Judgment, before
    Appellant begins his arguments, Appellant states “On this 25th day of February, 2015.” There
    are no other dates on the motion to indicate when it was delivered to prison authorities.
    For purposes of determining the timeliness of a motion, we use the date an inmate
    “delivered it to prison authorities for forwarding to the court clerk.” Houston v. Lack, 
    487 U.S. 266
    , 276 (1988); Campbell v. State, 
    320 S.W.3d 338
    , 344 (Tex. Crim. App. 2010) (“We hold that
    the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison
    authorities for forwarding to the court clerk.”). Given the information before us, we conclude
    Appellant delivered the motion to arrest judgment to prison authorities on February 25, 2015—
    the due date for a motion to arrest judgment. See TEX. R. APP. P. 22.3.
    Generally, a notice of appeal is due “within thirty days . . . after the trial court enters an
    appealable order.” See TEX. R. APP. P. 26.2(a)(1). But a motion to arrest judgment extends the
    period to file a notice of appeal. See TEX. R. APP. P. 26.2(a)(2) (extending the deadline to file a
    notice of appeal to ninety days if a motion for new trial is filed); Golden v. State, 
    833 S.W.2d 291
    , 291–92 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (allowing a motion in arrest of
    judgment, like a motion for new trial, to extend the time to file a notice of appeal). Appellant’s
    notice of appeal was filed on March 19, 2015, less than sixty days after the appealable order was
    signed.
    Based on the record before us, we conclude Appellant’s notice of appeal was timely filed
    and we have jurisdiction over this appeal. We reinstate the appellate deadlines. Appellant’s
    brief is due within thirty days of the date of this order.
    _________________________________
    Patricia O. Alvarez, Justice
    IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
    court on this 13th day of May, 2015.
    ___________________________________
    Keith E. Hottle
    Clerk of Court
    

Document Info

Docket Number: 04-15-00183-CR

Filed Date: 5/18/2015

Precedential Status: Precedential

Modified Date: 5/18/2015