State v. Refugio Angel Lozano

MEMORANDUM OPINION
No. 04-11-00613-CR
The STATE of Texas,
Appellant
v.
Refugio Angel LOZANO,
Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. 04-CRS-78
Honorable Ana Lisa Garza, Judge Presiding
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 21, 2011
DISMISSED FOR LACK OF JURISDICTION
This is an attempted appeal by the State of Texas from a trial court order granting
appellee Refugio Angel Lozano’s writ of habeas corpus. The order from which the State
attempts to appeal was signed July 8, 2011. Accordingly, the State’s notice of appeal was due on
or before July 28, 2011, twenty days from the date the order was signed. See TEX. R. APP. P.
26.2(b); TEX. CODE CRIM. PROC. art. 44.01(d) (West Supp. 2010). However, the State did not
file its notice of appeal until July 29, 2011. Moreover, the State did not timely file a motion to
04-11-00613-CR
extend time to file the notice of appeal, which would have been due on August 12, 2011. See
TEX. R. APP. P. 26.3.
Because the notice of appeal appeared to be untimely, on August 29, 2011, we issued a
show cause order requiring the State to show cause why the appeal should not be dismissed for
lack of jurisdiction. The State filed a response on September 8, 2011. In its response, the State
admits it filed the notice of appeal on July 29, 2011, but claims it was timely pursuant to the
rules governing the computation of time for deadlines. We disagree.
Although we agree with the State that when computing time for purposes of filing
deadlines, the day the order is signed is not included, but the last day of the relevant time period
is included. See TEX. R. APP. P. 4.1(a). Accordingly, in this case, in computing the twenty day
deadline for the State’s notice of appeal, we would not include July 8th, the date the trial court’s
signed the order, but we would include the 20th day. Excluding July 8th, but including the 20th
day thereafter results in the notice of appeal being due July 28, 2011, not July 29, 2011, as
asserted by the State. Given the State’s admission that its notice of appeal was filed July 29th,
and considering the twenty-day deadline and the rules for computing time, we hold the State’s
notice of appeal was one day late.
This court does not have jurisdiction to consider an appeal that was not timely filed. See
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Therefore, because the State’s
notice of appeal was untimely, we dismiss the appeal for lack of jurisdiction.
PER CURIAM
Do Not Publish
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