Stephen Anthony Bernal v. State ( 2014 )

The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
January 16, 2014
No. 04-14-00035-CR
Stephen Anthony BERNAL,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR7017
Honorable Olin B. Strauss, Judge Presiding
ORDER
Appellant filed a document entitled Motion for Leave to File Late Notice of Appeal in the
trial court; however, appellant did not file a notice of appeal. 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 the Texas Court of Criminal Appeals may consider
appellant’s filing of the motion in determining whether appellant should be entitled to an out-of-
time appeal, see 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), we do not construe the
motion as a notice of appeal. See Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio
2008, no pet.); Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San Antonio 1996, no pet.). It
is therefore ORDERED that appellant show cause in writing within two weeks from the date this
order is signed why this appeal should not be dismissed for lack of jurisdiction. All other
appellate deadlines are suspended until further order of this court.
_________________________________
Catherine Stone, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of January, 2014.
___________________________________
Keith E. Hottle
Clerk of Court