Erasmo Alvarez v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
June 22, 2018
No. 04-18-00337-CR
Erasmo ALVAREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR4559
Honorable Joey Contreras, Judge Presiding
ORDER
On May 29, 2018, we informed appellant by written order that it appeared we had no
jurisdiction over this appeal because his notice of appeal was untimely filed. We noted that the
trial court imposed sentence in this case on March 21, 2018, and, because appellant did not file a
timely motion for new trial, the notice of appeal was due on April 20, 2018. The clerk’s record
showed that appellant’s pro se notice of appeal was not file-stamped by the trial court clerk until
May 15, 2018. We ordered appellant to show cause why this appeal should not be dismissed for
lack of jurisdiction.
On June 18, 2018, appellant’s court-appointed counsel filed a response, asserting that the
notice of appeal was timely filed under the “prisoner mail-box rule.” In this response, counsel
points out that appellant’s pro se notice of appeal shows that appellant did “verify and declare
under penalty of perjury” that the notice was mailed to the trial court clerk on April 18, 2018.
Counsel further represents that appellant was incarcerated in the Dominguez Unit of the TDCJ-
ID on that date. The Texas Court of Criminal Appeals has held 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.” Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010). “[W]e
decline to penalize a pro se inmate who timely delivers a document to the prison mailbox.” Id.
We have examined the pro se notice of appeal contained in the clerk’s record and its
corresponding envelope. In the pro se notice of appeal, appellant “certify[ies] that on April 18,
2018 a true and correct copy of appellant[’]s motion for appeal notice was mailed to the district
clerk of Bexar County Texas . . . .” Appellant also “verif[ies] and declare[s] under penalty of
perjury that the foregoing statements are true and correct executed on this the 18th day of April
2018.” However, the corresponding envelope is not post-marked until May 14, 2018.
We conclude that the record supports the application of the prisoner mailbox rule in this
case. Appellant’s pro se notice of appeal is deemed filed on April 18, 2018. We conclude that
appellant’s pro se notice of appeal was timely filed and we have jurisdiction over this appeal. We
RETAIN this appeal on our docket and we LIFT the suspension of appellate deadlines in this
appeal.
On June 4, 2018, court reporter Maria Fattahi filed part of the reporter’s record. The
remainder of reporter’s record has not been filed. We order court reporter Brooke Wagner to
file the remainder of the reporter’s record no later than 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 22nd day of June, 2018.
___________________________________
KEITH E. HOTTLE,
Clerk of Court