Richard Lares v. State

The State of TexasAppellee

Fourth Court of Appeals San Antonio, Texas Wednesday, May 13, 2015

No. 04-15-00183-CR

Richard LARES, Appellant

v.

The STATE of Texas, Appellee

From the 399th Judicial District Court, Bexar County, Texas Trial Court No. 2006CR10110 Honorable Juanita A. Vasquez-Gardner, Judge Presiding

ORDER On April 7, 2015, we ordered Appellant, an inmate, to show cause why this court has jurisdiction in this appeal because Appellant’s notice of appeal appeared to be untimely. The trial court signed a Judgment Nunc Pro Tunc on January 26, 2015, Appellant’s notice of appeal was due on February 25, 2015, but his notice of appeal was not filed until March 19, 2015. Appellant, now represented by court-appointed counsel, filed a response. Appellant has been incarcerated since 2009 and is still incarcerated. In his pro se notice of appeal, Appellant “avers that he sent Motion to Arrest Judgment on February 26, 2015 a day within the 30 days to file.” In paragraph I of his pro se Motion to Arrest Judgment, before Appellant begins his arguments, Appellant states “On this 25th day of February, 2015.” There are no other dates on the motion to indicate when it was delivered to prison authorities. For purposes of determining the timeliness of a motion, we use the date an inmate “delivered it to prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 276 (1988); Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010) (“We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.”). Given the information before us, we conclude Appellant delivered the motion to arrest judgment to prison authorities on February 25, 2015— the due date for a motion to arrest judgment. See TEX. R. APP. P. 22.3. Generally, a notice of appeal is due “within thirty days . . . after the trial court enters an appealable order.” See TEX. R. APP. P. 26.2(a)(1). But a motion to arrest judgment extends the

period to file a notice of appeal. See TEX. R. APP. P. 26.2(a)(2) (extending the deadline to file a notice of appeal to ninety days if a motion for new trial is filed); Golden v. State, 833 S.W.2d 291, 291–92 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d) (allowing a motion in arrest of judgment, like a motion for new trial, to extend the time to file a notice of appeal). Appellant’s notice of appeal was filed on March 19, 2015, less than sixty days after the appealable order was signed. Based on the record before us, we conclude Appellant’s notice of appeal was timely filed and we have jurisdiction over this appeal. We reinstate the appellate deadlines. Appellant’s brief is due within thirty days of the date of this order.

_________________________________ Patricia O. Alvarez, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of May, 2015.

___________________________________ Keith E. Hottle Clerk of Court