Ex Parte Devan S. Matthews ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
September 23, 2014
No. 04-14-00625-CR
Ex Parte Devan S. MATTHEWS,
Appellant
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR11609
Honorable Ron Rangel, Judge Presiding
ORDER
On June 16, 2014, the trial court denied Appellant’s pre-trial application for writ of
habeas corpus. Appellant had thirty days to file a notice of appeal. See TEX. R. APP. P. 26.2(a);
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Green v. State, 999 S.W.2d 474,
476 (Tex. App.—Fort Worth 1999, pet. ref’d).
Appellant concedes he did not timely file a notice of appeal, but he asserts he had no
notice or actual knowledge of the appealable order within twenty days of the date the order was
signed. Cf. TEX. R. APP. P. 4.2(c) (no notice in civil case); TEX. R. CIV. P. 306a (same).
However, in a criminal case, neither Appellate Rule 4.2 nor Civil Rule 306a applies. E.g.,
Dewalt v. State, 417 S.W.3d 678, 689–90 (Tex. App.—Austin 2013), pet. ref’d, 426 S.W.3d 100
(Tex. Crim. App. 2014) (“Although [no notice of the appealable order] might excuse an untimely
notice of appeal in a civil case, ‘[n]o comparable rule exists for criminal cases,’ and Texas courts
have routinely held, as we must do here, that being unaware of an appealable order or judgment
does not excuse an untimely notice of appeal.” (second alteration in original) (footnotes
omitted)); Pope v. State, No. 05-10-01455-CR, 2011 WL 924477, at *2 (Tex. App.—Dallas Mar.
18, 2011, no pet.) (mem. op., not designated for publication) (same).
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo,
918 S.W.2d at 522; Green, 999 S.W.2d at 476. In this case, Appellant concedes the notice of
appeal was not timely filed but moves this court to grant an extension of time to file the notice of
appeal.
A late notice of appeal may be considered timely so as to invoke a court of appeal’s
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.
Olivo, 918 S.W.2d at 522; see also Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App.
2012) (“If a notice of appeal is not timely filed [under Rule 26.2 or Rule 26.3], the court of
appeals has no option but to dismiss the appeal for lack of jurisdiction.”).
Therefore, we ORDER Appellant to show cause in writing within TEN DAYS from the
date of this order why this appeal should not be dismissed for want of jurisdiction. See Castillo,
369 S.W.3d at 198; Olivo, 918 S.W.2d at 522.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of September, 2014.
___________________________________
Keith E. Hottle
Clerk of Court