Allison D. Lozano v. State

Fourth Court of Appeals San Antonio, Texas October 19, 2016

No. 04-16-00465-CR

Allison D. LOZANO, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR1746 The Honorable Mark Luitjen, Judge Presiding

ORDER Appellant’s notice of appeal was due to be filed on July 18, 2016. The clerk’s record shows appellant’s pro se notice of appeal was file-stamped by the trial court clerk on July 20, 2016. Thus, the notice of appeal appeared to have been untimely filed. Because timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012).

Appellant’s court-appointed counsel filed a response to our show cause order, asserting that appellant’s notice of appeal was timely filed under the prisoner mailbox rule. This response was later supplemented with an affidavit in which appellant, an inmate, states that she prepared the notice of appeal on July 1, 2016, and deposited it in the mail system at the Bexar County Detention Facility one to seven days later.

Under the prisoner-mailbox rule, a pro se inmate’s pleading is deemed filed at the time the prison authorities duly receive the document to be mailed. Taylor v. State, 424 S.W.3d 39, 44 (Tex. Crim. App. 2014); Campbell v. State, 329 S.W.3d 338, 344 (Tex. Crim. App. 2010). Here, appellant’s affidavit shows that she delivered her notice of appeal to the jail authorities for forwarding to the trial court clerk on or before the filing deadline. Additionally, appellant’s notice of appeal reached its destination within ten days after the filing deadline. See TEX. R. APP. P. 9.2(b)(1); Taylor, 424 S.W.3d at 44 (concluding appellate court had jurisdiction when the notice of appeal actually reached the correct destination within the period of time permitted by

the mailbox rule). We, therefore, conclude that appellant’s notice of appeal was timely filed and that we have jurisdiction over this appeal. This appeal is retained on the Court’s docket.

The clerk’s record has been filed. The reporter’s record of the revocation proceedings is due thirty (30) days from the date of this order.

_________________________________ Karen Angelini, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of October, 2016.

___________________________________ Keith E. Hottle Clerk of Court