Opinion
No. 04-13-00595-CR
2013-09-17
Fidel CASTILLO, Appellant v. The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR2204
Honorable Dick Alcala, Judge Presiding
ORDER
The trial court imposed sentence on May 24, 2013, and appellant filed a timely motion for new trial on June 21, 2013. See TEX. R. APP. P. 21.4(a). Therefore, the deadline for filing a notice of appeal was August 22, 2013. See TEX. R. APP. P. 26.2(a)(2). However, a notice of appeal was not filed until August 30, 2013, and appellant did not file a motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.3.
A notice of appeal may appear to be late if filed by mail pursuant to Rule 9.2(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 9.2; Moore v. State, 840 S.W.2d 439 (Tex. Crim. App. 1992) (applying mailbox rule to filing of cost bond in appeal of criminal case); Villarreal v. State, 199 S.W.3d 30 (Tex. App.—San Antonio 2006, order), disp. on merits, No. 04-06-00022-CR, 2007 WL 120625 (Tex. App.—San Antonio Jan. 19, 2007, pet. ref'd) (holding inmate's notice of appeal was timely filed when delivered in a properly-addressed envelope to jail authorities on or before the due date and received by clerk within ten days of filing deadline). The notice of appeal, in the body, indicates the notice was filed May 28, 2013. However, there is no certificate of service attached to the notice and the record does not contain a copy of an envelope bearing a postmark.
We therefore ORDER appellant to file a written response in this court on or before October 7, 2013, establishing that the notice of appeal was timely filed by mail or otherwise showing cause why this appeal should not be dismissed for want of jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of appeals' jurisdiction). If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. If a supplemental clerk's record is required to show jurisdiction, appellant must ask the trial court clerk to prepare one and must notify the clerk of this court that such a request was made.
In addition, appellant entered into a plea bargain with the State, pursuant to which he pleaded guilty to two counts of robbery. The trial court imposed sentence in accordance with the agreement and signed a certificate stating this "is a plea-bargain case, and the defendant has NO right of appeal." See TEX. R. APP. P. 25.2(a)(2). The clerk's record, which includes the trial court's rule 25.2(a)(2) certification and a written plea bargain agreement, has been filed. See TEX. R. APP. P. 25.2(d). This court must dismiss an appeal "if a certification that shows the defendant has the right of appeal has not been made part of the record." Id.
The clerk's record establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See TEX. R. APP. P. 25.2(a)(2). The record also appears to support the trial court's certification that appellant does not have a right to appeal. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005) (holding that court of appeals should review clerk's record to determine whether trial court's certification is accurate).
Accordingly, notice is hereby given that this appeal will be dismissed pursuant to Rule 25.2(d) of the Texas Rules of Appellate Procedure unless an amended certification showing that appellant has the right to appeal is made part of the appellate record by October 7, 2013. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order), disp. on merits, No. 04-03-00176-CR, 2003 WL 21508347 (July 2, 2003, pet. ref'd) (not designated for publication).
We order all appellate deadlines suspended until further order of the court. We further order the clerk of this court to serve copies of this order on the attorneys of record and the court reporter.
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Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 17th day of September, 2013.
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Keith E. Hottle
Clerk of Court