Ex Parte Mario Amaro Castillo ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00172-CR
EX PARTE MARIO AMARO
CASTILLO
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Mario Amaro Castillo attempts to appeal from the trial court’s
order denying his application for writ of habeas corpus. The trial court signed the
order denying Appellant’s application for writ of habeas corpus on March 30,
2011, and Appellant’s notice of appeal was due April 29, 2011. See Tex. R. App.
P. 25.2(b), 26.2(a)(1). Appellant did not file his notice of appeal until May 17,
1
See Tex. R. App. P. 47.4.
2011. Because Appellant did not timely file a notice of appeal, we dismiss the
appeal for want of jurisdiction.
Rule 26.3 provides that an “appellate court may extend the time to file the
notice of appeal if, within 15 days after the deadline for filing the notice of appeal,
the party: (a) files in the trial court the notice of appeal; and (b) files in the
appellate court a motion complying with Rule 10.5(b).” Tex. R. App. P. 26.3
(emphasis added). Appellant filed both his notice of appeal and a motion for
extension of time to file his notice of appeal on May 17, 2011, one day after the
fifteen-day deadline set forth in rule 26.3.2 We therefore asked Appellant’s
counsel to provide proof that the notice of appeal was mailed to the trial court by
the May 16, 2011 deadline, see Tex. R. App. P. 9.2(b)(1), and Appellant’s
counsel provided internet print-outs indicating that the notice of appeal was
picked up for delivery by Federal Express at 6:49 p.m. on May 16, 2011, and
delivered to the trial court clerk on May 17, 2011.
Rule of appellate procedure 9.2(b)(1)(A) expressly states that “a document
received within ten days after the filing deadline is considered timely filed if it was
sent to the proper clerk by United States Postal Service first-class, express,
registered, or certified mail.” Tex. R. App. P. 9.2(b)(1)(A) (emphasis added). A
document mailed using a private delivery service such as Federal Express does
not invoke the “mailbox rule” embodied in rule 9.2(b)(1)(A). Id. Thus, Appellant’s
2
The fifteenth day after April 29 was Saturday, May 14, 2011. The
deadline for the notice of appeal and motion for extension of time to file notice of
appeal was therefore extended to Monday, May 16, 2011. See Tex. R. App. P.
4.2(a).
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notice of appeal was not timely filed.3 See Tex. R. App. P. 9.2(b)(1)(A), 25.2(b),
26.3. The court of criminal appeals has expressly held that without a timely filed
notice of appeal or motion for extension of time, we cannot exercise jurisdiction
over an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App.
1996). Because Appellant’s notice of appeal was not timely filed, we dismiss this
case for want of jurisdiction. See Tex. R. App. P. 9.2(b)(1)(A), 25.2(b), 26.2(a),
26.3, 43.2(f).
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 16, 2011
3
We also note that Appellant has not offered a reasonable explanation for
his need to extend the time to file the notice of appeal. See Tex. R. App. P.
10.5(b)(1)(C), (b)(2)(A). Appellant states in his motion that he had immigration
proceedings pending at the time he filed his application for writ of habeas corpus,
that he “had to confer with his counsel in the immigration proceedings to
determine what course of action he wished to pursue in this proceeding,” and
that “that determination extended past the time for filing a Notice of Appeal.” “[I]f
the facts relied on to reasonably explain the need for the extension demonstrate
that the decision to delay filing notice of appeal until after the appropriate
deadline was a deliberate or intentional decision, we may not extend the time for
filing a notice of appeal.” Rodman v. State, 47 S.W.3d 545, 548 (Tex. App.—
Amarillo 2000, no pet.) (holding no reasonable explanation provided when the
appellant decided to appeal after he was indicted for other crimes and needed to
appeal the original conviction to preserve his eligibility for parole in the other
cases); see generally Amegy Bank of Tex., N.A. v. Titan Services, LLC, No. 02-
09-00420-CV, 2010 WL 87095, at *1 (Tex. App.—Fort Worth Jan. 7, 2010, no
pet.) (mem. op.) (holding the appellant’s explanation was inadequate because it
reflected that it “consciously ignored the deadline in favor of deliberately
evaluating whether to file an appeal”).
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