Daniel James Weems v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00001-CR
Daniel James WEEMS,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the 38th Judicial District Court, Medina County, Texas
Trial Court No. 12-12-11120-CR
The Honorable Camile G. Dubose, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: February 19. 2014
DISMISSED FOR LACK OF JURISDICTION
The trial court imposed sentence in the underlying cause on September 11, 2013. Because
appellant did not file a timely motion for new trial, the notice of appeal was due to be filed October
11, 2013. 1 TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the notice of appeal
1
The deadline for filing the motion for new trial was October 11, 2013, and the motion for new trial was not filed
until October 28, 2013. In an amended notice of appeal, appellant’s attorney makes reference to the appellant having
tendered his motion for new trial to his jailors on October 16, 2013; however, October 16, 2013 was after the October
11, 2013 deadline.
04-14-00001-CR
was due on October 28, 2013. TEX. R. APP. P. 26.3. On October 28, 2013, appellant filed a notice
of appeal 2 and a motion for extension of time in the trial court.
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See Olivo
v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be considered
timely so as to invoke a court of appeals’ 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. See id. Although appellant filed the notice of appeal and
motion for extension of time within the fifteen day grace period, appellant filed his motion for
extension of time with the trial court instead of with this court.
On January 29, 2014, we ordered appellant to show cause in writing within two weeks from
the date of this order why this appeal should not be dismissed for lack of jurisdiction. See id.; see
also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal
from 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). Appellant’s attorney responded to this court’s
order stating, “Appellant, through undersigned counsel, must concede that his pro se notice of
appeal and extension do not appear to have been filed in the manner necessary to properly invoke
this Court’s jurisdiction.” Because appellant failed to file his motion for extension of time in the
proper court, this appeal is dismissed for lack of jurisdiction. See Olivo v. State, 918 S.W.2d at
522.
PER CURIAM
DO NOT PUBLISH
2
We liberally construe appellant’s letter requesting the trial court’s permission to appeal as a notice of appeal.
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