John Donohue v. State ( 2014 )

The State of TexasAppellee/s
Fourth Court of Appeals
San Antonio, Texas
February 4, 2014
No. 04-14-00060-CR
John DONOHUE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2013CR3514
Honorable Raymond Angelini, Judge Presiding
ORDER
The trial court imposed sentence on John Donohue on October 25, 2013. Therefore,
either a motion for new trial or a notice of appeal was due thirty days later on November 25,
2013. See TEX. R. APP. P. 21.4(a); 26.2(a). The clerk’s record contains a motion for new trial
and a notice of appeal, both bearing file-stamps dated December 5, 2013.
A pleading that is received within ten days after the filing deadline is considered timely
filed if: “(A) it was sent to the proper clerk by United States Postal Service or a commercial
delivery service; (B) it was placed in an envelope or wrapper properly addressed and stamped;
and (C) it was deposited in the mail or delivered to a commercial delivery service on or before
the last day for filing.” TEX. R. APP. P. 9.2(b)(1). Under the “prisoner mailbox rule,” a pro se
prisoner’s pleading is deemed filed at the time it is delivered to the appropriate prison authorities
for mailing if it is in a properly addressed and stamped envelope and is sent to the proper clerk
by United States Postal Service or a commercial delivery service. Campbell v. State, 320 S.W.3d
338, 342 (Tex. Crim. App. 2010).
Although the motion for new trial and notice of appeal were received by the Bexar
County District Clerk within ten days after the filing deadline, the record before us is insufficient
to determine whether the “prisoner mailbox rule” applies. The certificate of service
accompanying Donohue’s motion for new trial and the unsworn declarations attached to both the
motion for new trial and the notice of appeal are all dated November 25, 2013. However, the
record does not indicate whether the pleadings were filed by mail, and if so, to whom they were
delivered for mailing, when they were delivered for mailing, to whom they were addressed, and
whether they were properly stamped.
Appellant also filed a motion for extension of time to file his notice of appeal. If either
the motion for new trial or the notice of appeal was timely filed, the appeal is timely and the
motion for extension of time is moot. However, if Donohue cannot show the motion for new
trial or the notice of appeal was timely filed, we must consider the motion for extension of time.
The motion was due December 10, 2013, fifteen days after the deadline for filing the notice of
appeal. See TEX. R. APP. P. 26.3. However, the motion was not received and filed in this court
until December 16, 2013. The certificate of service accompanying the motion is dated
December 13, 2013, after the deadline for filing. Accordingly, the “prisoner mailbox rule”
cannot apply and the motion is denied as untimely.
We therefore order a response from Donohue due February 19, 2014, establishing that
the motion for new trial or notice of appeal was timely filed by mail or otherwise showing cause
why this appeal should not be dismissed for want of jurisdiction. See Olivo v. State, 918 S.W.2d
519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke
court of appeals’ jurisdiction). Appellant has the burden to request the trial court clerk
prepare a supplemental clerk’s record containing any pleadings and orders necessary to establish
this court’s jurisdiction. Appellant must file a copy of any such request with this court. If
appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed.
All deadlines in this matter are suspended until further order of the court.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of February, 2014.
___________________________________
Keith E. Hottle
Clerk of Court