Opinion
No. 04-16-00778-CR
12-15-2016
Carlos DE LA O, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2001CR3651
Honorable Steve Hilbig, Judge Presiding
ORDER
In 2002, a jury found appellant Carlos De La O guilty of multiple counts of aggravated sexual assault, sexual assault, and indecency with a child by sexual contact. The jury assessed punishment by confinement in the Texas Department of Criminal Justice—Institutional Division, and the trial court imposed the sentences.
In July 2015, Appellant moved for forensic DNA testing. The trial court denied the motion by an order it signed on October 13, 2016. Appellant's notice of appeal was due on November 14, 2016. See TEX. R. APP. P. 4.1, 26.2; Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006) (requiring a written notice of appeal to be filed "within thirty days after the appealable order is entered"). A motion for extension of time to file a notice of appeal was due not later than November 29, 2016. See TEX. R. APP. P. 26.3 (extension of time); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
Appellant filed a notice of appeal in which he states the following:
I, Carlos V. De La O, certify that a true and correct copy of Defendant's Notice of Appeal was placed into the Prison mail System on November 18, 2016, and mailed to the 187th Judicial District Court, Bexar County Texas, via the District Clerk of Bexar County, Donna Kay McKinney, 101 W. Nueva, Suite 217 San Antonio, Texas 78205.The District Clerk filed the notice of appeal on November 23, 2016.
Accepting Appellant's assertion as true that he placed his notice of appeal in the prison mail system on November 18, 2016, we nevertheless note that his notice of appeal was filed four days late, see TEX. R. APP. P. 26.1, albeit within the fifteen-day period in which he could have filed a motion for extension of time to file a notice of appeal, see id. R. 26.3. However, the appellate record does not show that Appellant timely filed a motion for extension of time to file a notice of appeal. Thus, Appellant's notice of appeal appears to be untimely.
A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. Olivo, 918 S.W.2d at 522. "When a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction." Id.
We ORDER Appellant to show cause in writing within TWENTY DAYS of the date of this order why this appeal should not be dismissed for want of jurisdiction. See id.
All other appellate deadlines are SUSPENDED pending further order of this court.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of December, 2016.
/s/_________
Keith E. Hottle
Clerk of Court