Ex Parte Jose Agostadero v. State ( 2014 )

Dismissed and Memorandum Opinion filed April 22, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00975-CR
EX PARTE JOSE AGOSTADERO
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1175214-A
MEMORANDUM OPINION
On September 20, 2013, the trial court signed an order denying appellant
Jose Agostadero’s application for a writ of habeas corpus. The State contends this
court lacks jurisdiction because appellant filed his notice of appeal one day late and
then filed his motion to extend time one day late. We agree with the State and
dismiss the appeal.
Appellant’s notice of appeal was due on October 21, 2013. See Tex. R. App.
P. 26.2(a)(1) (notice of appeal must be filed within 30 days of an appealable
order); see also Tex. R. App. P. 4.1(a). But appellant filed his notice of appeal one
day late, on October 22. Appellant’s notice of appeal would have been timely,
nonetheless, if appellant had filed a motion to extend the time for filing a notice of
appeal within fifteen days of October 21—by November 5. See Tex. R. App. P.
26.3. Appellant e-filed a motion to extend time, but it was file-stamped at
12:04 a.m. on November 6. To be filed timely, appellant’s motion had to be
transmitted to appellant’s electronic filing service provider before midnight. See
Tex. R. App. P. 9.2(c)(4). Thus, appellant’s motion was about five minutes late.
We initially denied appellant’s motion as moot, but after the State raised the
jurisdictional issue in its brief, we notified the parties that appellant’s motion was
untimely and we would consider dismissal. We invited the parties to file a
response, noting that our record did not reflect (1) when the motion was
transmitted to appellant’s electronic filing service provider; or (2) whether there
was a technical failure or system outage. See Tex. R. App. P. 9.2(c)(4)–(5).
Appellant filed a response stating that his failure to timely file the motion
was a result of counsel’s calendaring the due date for the motion incorrectly:
“Once counsel realized this mistake on the evening of November 5, a motion for
extension was prepared but could not be e-filed until four minutes after midnight.
The failure to complete and file the extension motion 5 minutes earlier was the
result of inadvertence, mistake, and mischance.” Appellant did not allege or prove
that the motion was transmitted to appellant’s electronic filing service provider
before midnight, or that there was a technical failure or system outage that caused
the untimely filing.
In a civil case, a motion to extend the time for filing a notice of appeal is
“necessarily implied” when an appellant files a notice of appeal within the fifteen-
day grace period authorized by Rule 26.3. See Hernandez v. Nat’l Restoration
Techs., L.L.C., 211 S.W.3d 309, 310 n.1 (Tex. 2006) (per curiam); Verburgt v.
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Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Lair v. State, 321 S.W.3d 158, 159
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). In a criminal case, however, we
do not infer a motion to extend the time for filing a notice of appeal: “When a
notice of appeal, but no motion for extension of time, is filed within the fifteen-day
period, the court of appeals lacks jurisdiction to dispose of the purported appeal in
any manner other than by dismissing it for lack of jurisdiction.” Olivo v. State, 918
S.W.2d 519, 523 (Tex. Crim. App. 1996).
Appellant notes that since Olivo, the Court of Criminal Appeals has
“functionally embraced an approach to perfecting appeals and notice of appeal
closer to that of the Texas Supreme Court.” Few v. State, 230 S.W.3d 184, 189
(Tex. Crim. App. 2007) (quotation omitted) (holding that the appellant’s appeal
should not be dismissed merely because the notice of appeal included the wrong
cause number; appellant was entitled to a reasonable opportunity to correct the
defect). However, “nothing in Few suggests that the court has extended the
Verburgt holding regarding timeliness and implied extensions to the timeliness
requirement.” Strange v. State, 258 S.W.3d 184, 187 n.2 (Tex. App.—Houston
[1st Dist.] 2007, pet. ref’d). Since Few, this court has repeatedly dismissed appeals
in criminal cases when the appellant filed a notice of appeal within the fifteen-day
grace period but did not file a timely motion to extend time. See, e.g., Greer v.
State, 14-11-00898-CR, 2012 WL 130952, at *1 (Tex. App.—Houston [14th Dist.]
Jan. 12, 2012, no pet.) (per curiam) (appellant filed a notice of appeal within the
grace period but filed a motion to extend time after the grace period). Further, the
Court of Criminal Appeals has continued to recognize Olivo as precedent,
reaffirming the “continuing validity of [the] Olivo rule under [the] revised
TRAPs.” Castillo v. State, 369 S.W.3d 196, 198 & n.10 (Tex. Crim. App. 2012)
(citing Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam)).
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Appellant cites to Justice Sharp’s concurring opinion in Lair v. State and
asks this court to follow Verburgt rather than Olivo. See 321 S.W.3d at 160
(Sharp, J., concurring). Lair had filed a notice of appeal within the fifteen-day
grace period but did not file a motion to extend time. Id. at 159 (majority op.).
The First Court of Appeals dismissed the appeal for lack of jurisdiction, and
Justice Sharp concurred to urge Lair to “petition the Court of Criminal Appeals to
consider this issue” and to “provide the Court of Criminal Appeals an opportunity
to adopt the holding of Verburgt and to bring procedural consistency to our civil
and criminal appellate jurisprudence.” Id. at 160 (Sharp, J., concurring). Lair filed
a petition for discretionary review, but the Court of Criminal Appeals refused it.
Lair does not support appellant’s position.
Appellant urges several other reasons for abandoning Olivo, such as a lack
of harm to the State, but appellant does not support his arguments with controlling
authority. In particular, appellant asks this court to enlarge the time for filing a
motion to extend time by invoking Rule 2 of the Texas Rules of Appellate
Procedure, but the Court of Criminal Appeals rejected that argument in Slaton, 981
S.W.2d at 210.
Olivo is controlling authority, and we are bound by it. See, e.g., Zarchta v.
State, 44 S.W.3d 155, 162 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)
(“[A]s an intermediate appellate court, we are bound by controlling authority from
the Court of Criminal Appeals.”). Appellant did not timely file a motion to extend
the time for filing his notice of appeal within fifteen days as required by Rule 26.3,
and appellant does not contend a technical failure or system outage caused the
filing to be untimely.
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Accordingly, the appeal is dismissed.
/s/ Sharon McCally
Justice
Panel consists of Justices Christopher, Jamison, and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
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