Opinion
04-23-00980-CR
11-17-2023
Christian W. PFISTER, Appellant v. The STATE of Texas, Appellee
From the County Court At Law No 2, Guadalupe County, Texas Trial Court No. CCL-20-0273 Honorable Kirsten Legore, Judge Presiding
ORDER
BETH WATKINS, JUSTICE
On August 15, 2023, the trial court signed an order denying appellant's application for writ of habeas corpus. On September 13, 2023, appellant filed a Motion for New Hearing, and on October 23, 2023, he filed a Motion for Reconsideration. On November 6, 2023, appellant filed a notice of appeal.
In a criminal case where the defendant is the appellant, the notice of appeal must be filed either: (1) "within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order; or (2) within 90 days after the day sentence is imposed or suspended in open court if the defendant timely files a motion for new trial." TEX. R. APP. P. 26.2(A). "SIGNIFICANTLY, RULE 26.2(A)(2) DOES NOT INCLUDE 'OR OTHER APPEALABLE ORDER' IN PROVIDING FOR THE EXTENDED PERIOD OF TIME IN WHICH TO FILE NOTICE OF APPEAL IF A MOTION FOR NEW TRIAL IS FILED." Ex parte Delgado, 214 S.W.3d 56, 58 (Tex. App.-El Paso 2006, pet. ref'd). When a criminal defendant seeks to challenge an "appealable order" that does not impose or suspend a sentence, the plain language of Rule 26.2(a) requires him to file his notice of appeal within 30 days of the entry of the order. See id.; see also Welsh v. State, 108 S.W.3d 921, 922 (Tex. App.- Dallas 2003, no pet.); Ex parte Gutierrez, No. 03-17-00644-CV, 2017 WL 5247516, at *1-2 (Tex. App.-Austin Nov. 7, 2017, no pet.) (mem. op., not designated for publication); Ex parte Roberts, No. 14-08-00575-CR, 2008 WL 3940738, at *1 (Tex. App.-Houston [14th Dist.] Aug. 21, 2008, pet. ref'd) (mem. op., not designated for publication) (per curiam).
Here, the trial court's order denying appellant's application for writ of habeas corpus was an appealable order. See TEX. CODE CRIM. PROC. ANN. ART. 11.072, § 8. HOWEVER, IT DID NOT impose or suspend a sentence. See Delgado, 214 S.W.3d at 58; TEX. R. APP. P. 26.2(A)(2). BECAUSE THE TRIAL COURT ENTERED THE APPEALABLE ORDER ON AUGUST 15, 2023, APPELLANT'S NOTICE OF APPEAL WAS DUE BY SEPTEMBER 14, 2023. TEX. R. APP. P. 26.2(A)(1); Delgado, 214 S.W.3d at 58. A motion for extension of time to file the notice of appeal was due by September 29, 2023. TEX. R. APP. P. 26.3. APPELLANT'S NOVEMBER 6, 2023 NOTICE OF APPEAL THEREFORE APPEARS TO BE UNTIMELY.
A timely notice of appeal is necessary to invoke an appellate court's jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because appellant's notice of appeal appears to be untimely and he did not timely file a motion for extension of time, we ORDER appellant to show cause in writing by December 18, 2023 why this appeal should not be dismissed for want of jurisdiction. All other appellate deadlines are suspended until further order of this court.