Robert Martinez, Jr. v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00822-CR
Robert MARTINEZ Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 307125
Honorable John Longoria, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: March 14, 2018
DISMISSED FOR WANT OF JURISDICTION
Appellant Robert Martinez Jr. asserts he was wrongfully convicted in Bexar County Court
at Law No. 5 of the offense of Driving While Intoxicated. The limited record we have for that trial
court cause number shows Appellant was indicted on April 17, 1983—almost thirty-five years
ago—and the trial court’s record has since been destroyed.
On December 1, 2017, Appellant filed a motion for leave to file a late notice of appeal for
his 1980s conviction. Appellant’s notice of appeal was due sometime in the early 1980s. See TEX.
R. APP. P. 26.2(a)(1). Because it appeared that Appellant’s December 1, 2017 motion for leave to
04-17-00822-CR
file a late notice of appeal was filed decades too late, on January 18, 2018, we ordered Appellant
to show cause in writing by February 7, 2018, why this court should not dismiss his appeal for
want of jurisdiction. See TEX. R. APP. P. 26.2(a)(1), 26.3.
On February 15, 2018, 1 this court received Appellant’s response stating he received our
January 18, 2018 order. Appellant asked for more time to respond. We grant his request and deem
his response timely filed. In his response, he states he “believes this is an extraordinary case which
he will request this court to invoke it’s [sic] jurisdiction.”
A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a
defendant’s notice of appeal is timely filed if it is filed within thirty days after (1) the day sentence
is imposed or suspended in open court, or (2) the day the trial court enters an appealable order.
See TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. A late notice of appeal may be considered
timely and invoke a court of appeals’ jurisdiction if it meets the following requirements:
(1) it is filed within fifteen days of the last day allowed for filing,
(2) a motion for extension of time is filed in the court of appeals within fifteen days
of the last day allowed for filing the notice of appeal, and
(3) the court of appeals grants the motion for extension of time.
Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex.
Crim. App. 1991).
Here, Appellant’s decades-late notice of appeal does not meet the requirements to invoke
this court’s jurisdiction. We dismiss this appeal for want of jurisdiction.
PER CURIAM
DO NOT PUBLISH
1
On January 29, 2018, this court received our January 18, 2018 order by returned mail—that indicated Appellant’s
address had changed due to his relocation to a different penal institution. On February 6, 2018, after this court received
a second returned mail order and a second notice that Appellant’s address had changed, we again mailed the January
18, 2018 order to Appellant at a corrected address, and he acknowledges he received the order.
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