Jimmy Aldana v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
January 9, 2019
No. 04-18-00369-CR
Jimmy ALDANA,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR8138
Honorable Frank J. Castro, Judge Presiding
ORDER
On January 7, 2018, appellant filed a pro se “emergency motion to strike the brief filed
by appellate attorney and request extension [sic] of time and that case be sent back to trial court
for the appointment of new appellate counsel.” In that motion, appellant contends his appointed
appellate counsel was ineffective and asks that we abate the matter for appointment of new
counsel.
Our opinion in this appeal issued December 5, 2018. The time for filing a motion for
rehearing or motion for en banc reconsideration has expired. See TEX. R. APP. P. 49.1 (stating
deadline to file motion for rehearing is within 15 days after court of appeals’ judgment or order
is rendered); id. R. 49.8 (stating court of appeals may extend time for filing rehearing or en banc
reconsideration if party files proper motion for extension of time no later than 15 days after last
date for filing rehearing or en banc reconsideration). Accordingly, we DENY AS MOOT
appellant’s emergency motion.
Appellant’s petition for discretionary review was due in the Texas Court of Criminal
Appeals on January 4, 2019. See TEX. R. APP. P. 68.2(a). An extension of time to file the
petition may be filed on or before January 22, 2019. See id. R. 68.2(c). In the event appellant is
unable to timely file his petition by filing a timely extension, he may seek an out-of-time petition
for discretionary review based on his appointed appellate counsel’s failure to provide him, in a
timely manner, with a copy of this court’s opinion and judgment as required by Rule 48.4 and
inform him of his right to file a pro se petition for discretionary review. See id. R. 48.4; see also
Ex parte Owens, 206 S.W.3d 670 (recognizing appellant may file post-conviction application for
writ of habeas corpus seeking out-of-time petition for discretionary review when appellate
counsel fails to inform appellant of right to file pro se petition for discretionary review).
We order the clerk of this court to serve a copy of this order on appellant and all counsel.
We further order the clerk of this court to provide appellant with a copy of this court’s
December 5, 2018 opinion and judgment.
_________________________________
Beth Watkins, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of January, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court