John Ray Thatcher v. State

Fourth Court of Appeals
San Antonio, Texas
February 4, 2019
No. 04-19-00017-CR
John Ray THATCHER,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR0442
Honorable Jefferson Moore, Judge Presiding
ORDER
The trial court imposed sentence upon Thatcher on November 13, 2018. Appellant did
not file a motion for new trial. Accordingly, any notice of appeal was due on or before
December 13, 2018. See TEX. R. APP. P. 26.2(a)(1). On December 21, 2018, appellant filed in
the trial court a “Motion for Leave to File Late Notice of Appeal,” which this court construed as
a notice of appeal. On December 17, 2018, appellant filed in this court another “Motion for
Leave to File Late Notice of Appeal,” which we construe as a motion for extension of time to file
a notice of appeal.
To invoke this court’s jurisdiction, an appellant must timely file a notice of appeal. Olivo
v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (en banc). A notice of appeal is timely if
it is filed within thirty days after the day sentence is imposed when, as here, no timely motion for
new trial is filed. See TEX. R. APP. P. 26.2(a)(1). We may grant an extension of time to file a
notice of appeal if the notice of appeal is filed within fifteen days of the date the notice of appeal
was due and, within the same period, a motion is filed in the court of appeals reasonably
explaining the need for the extension. See id. R. 26.3; see also Olivo, 918 S.W.2d at 522.
As noted above, the notice of appeal in this matter was due December 13, 2018. See
TEX. R. APP. P. 26.2(a)(1). Appellant filed a notice of appeal in the trial court (and this court) on
December 21, 2018, a date within fifteen days of the original due date. See id. R. 26.3. He also
filed in this court, on December 17, 2018, a motion asking for an extension of time to file his
notice of appeal, explaining that his notice of appeal was untimely filed because he “was told
[he] could not appeal in regard to a plea deal[.]” See id. We find this explanation reasonable as
it is the place of the appellate court to decide whether an appellant may appeal, not another
person or entity. See Olivo, 918 S.W.2d at 522.
Accordingly, because appellant filed his notice of appeal and motion for extension of
time to file the notice of appeal in accordance with the Texas Rules of Appellate Procedure and
applicable case law, we GRANT appellant’s motion for extension of time to file the notice of
appeal.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of February, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court