Daniel Solis Deluna v. State ( 2014 )

The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
May 30, 2014
No. 04-14-00366-CR
Daniel Solis DELUNA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR8127
Honorable Ray Olivarri, Judge Presiding
ORDER
The trial court imposed sentence on March 27, 2014; the appellant had thirty days to file
a motion for new trial. See TEX. R. APP. P. 21.4(a); Rodarte v. State, 860 S.W.2d 108, 109 (Tex.
Crim. App. 1993). Because the clerk’s record in this appeal does not show appellant timely filed
a motion for new trial, the notice of appeal was due to be filed on April 28, 2014. See TEX. R.
APP. P. 26.2(a)(1). The appellant’s notice of appeal was filed with the trial court on May 7,
2014.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a
defendant’s notice of appeal is timely filed if filed within thirty days after (1) the day sentence is
imposed or suspended in open court, or (2) the day the trial court enters an appealable order. See
TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. In this case, the appellate record does not show
that the appellant’s notice of appeal was timely filed.
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 Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.
Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be
sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal
Procedure).
Therefore, we ORDER appellant to show cause in writing within fifteen days from the
date of this order why this appeal should not be dismissed for want of jurisdiction. See Olivo,
918 S.W.2d at 522; Ater, 802 S.W.2d at 243.
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 30th day of May, 2014.
___________________________________
Keith E. Hottle
Clerk of Court