Sebastian Garcia v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
March 7, 2018
No. 04-18-00032-CR
Sebastian GARCIA,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR4903
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
On February 13, 2018, appellant filed a motion requesting an extension of time to file a
notice of appeal. In his motion, appellant states he is appealing the trial court’s judgment
revoking his community supervision, and he failed to timely file a notice of appeal or motion for
new trial.
Rule 26.2 of the Texas Rules of Appellate Procedure provides that a notice of appeal
must be filed within 30 days after the day sentence is imposed or within 90 days after the day
sentence is imposed if the defendant timely filed a motion for new trial. TEX. R. APP. P. 26.2. A
motion for new trial is timely filed if the defendant files the motion before, but no later than 30
days after, the date when the trial court imposes sentence. Id. R. 21.4. If the filing of a notice of
appeal or motion for new trial is by mail, then it is considered timely filed if the document is
received within ten days after the filing deadline so long as it was: (1) sent to the proper clerk by
the United States Postal Service; (2) placed in an envelope properly addressed and stamped; and
(3) deposited in the mail on or before the last day of filing. Id. R. 9.2.
A review of the clerk’s record reflects that sentence was imposed on December 12, 2017.
The record does not contain a motion for new trial; therefore, the notice of appeal was due on or
before January 11, 2018. See id. R. 26.2. The clerk’s record further demonstrates that a pro se
notice of appeal was filed in our court on January 17, 2018, which was within ten days after the
filing deadline. Moreover, the clerk’s record indicates that the envelope containing the notice of
appeal was sent to the proper clerk, properly addressed to our court, and deposited in the mail on
January 11, 2018, the last day of filing. See id. R. 9.2; see also id. R. 25.2 (providing if notice of
appeal is received by court of appeals, clerk of court shall immediately record date notice was
received and send notice to trial court clerk). Therefore, appellant’s notice of appeal is deemed
timely.
Based on the foregoing, we DENY appellant’s motion for an extension of time to file a
notice of appeal as MOOT.
_________________________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of March, 2018.
___________________________________
Keith E. Hottle
Clerk of Court