Date: 01-18-2017

Case Style:

Case Number: 04-16-00778-CR

Judge: Memorandum Opinion Per Curiam

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney:

Nicholas LaHood

Defendant's Attorney:

David L. McLane

Description: 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); see also Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App.
2012) (citing Olivo with approval).
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. ORDER TO SHOW CAUSE ON JURISDICTION Accepting as true Appellant’s assertion 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.
Because the record appeared to show Appellant’s notice of appeal was untimely and
Appellant did not timely file a motion for extension of time to file a notice of appeal, on December
15, 2016, we ordered Appellant to show cause in writing by January 4, 2017, why this appeal
should not be dismissed for want of jurisdiction. See id.

APPELLANT’S RESPONSE Appellant timely filed a response in which he admits his notice of appeal was filed four
days late, but his response does not show he timely filed a motion for extension of time to file a
notice of appeal. Contra id. He argues that this court should adopt Verburgt’s holding that implies
a motion for extension of time to file a notice of appeal when a notice of appeal is filed within the
fifteen-day period for filing a motion for extension of time to file a notice of appeal. See Verburgt
v. Dorner, 959 S.W.2d 615, 615, 617 (Tex. 1997). He also argues that he acted in good faith to
invoke this court’s jurisdiction, and he asks this court to imply a motion for extension of time and
allow his appeal to proceed. See id. SUBJECT MATTER JURISDICTION We cannot grant Appellant’s request. A timely notice of appeal is necessary to invoke a
court of appeals’ jurisdiction. Castillo, 369 S.W.3d at 198 (citing Olivo, 918 S.W.2d at 522). “If
a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal
for lack of jurisdiction.” Id. (emphasis added) (citing Olivo, 918 S.W.2d at 523); accord Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Appellant admits his notice of appeal was
not timely filed and the record does not show Appellant timely filed a motion for extension of time
to file a notice of appeal. See Castillo, 369 S.W.3d at 202 (“[The defendant’s notice of appeal]
was just one day late, but one day is enough to deprive the appellate court of jurisdiction to consider
appellant’s appeal under the Texas Rules of Appellate Procedure.”).

Outcome: