Amado Barron Estrada v. Abel Nafrawi, et al.--Appeal from 156th District Court of Bee County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2004 » Amado Barron Estrada v. Abel Nafrawi, et al.--Appeal from 156th District Court of Bee County

State: Texas

Court: Texas Northern District Court

Docket No: 13-03-00769-CV

Case Date: 03/11/2004

Plaintiff: Amado Barron Estrada

Defendant: Abel Nafrawi, et al.--Appeal from 156th District Court of Bee County

Preview:Doris J. Spharler v. State of Texas--Appeal from 227th
Judicial District Court of Bexar County
No. 04-00-00401-CR
Doris SPHARLER,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 1994-CR-3448
Honorable Philip A. Kazen, Jr., Judge Presiding
PER CURIAM
Sitting: Alma L. L pez, Justice
Catherine Stone, Justice
Paul W. Green, Justice
Delivered and Filed: September 27, 2000
APPEAL DISMISSED FOR WANT OF JURISDICTION
This court's opinion and judgment dated August 23, 2000 is withdrawn, and this opinion and judgment are substituted
to correct an error in the earlier opinion. The earlier opinion incorrectly stated the rule for extending the time to file a
notice of appeal. This opinion is issued to properly state the rule. See Tex. R. App. P. 26.3. The opinion remains the
same in all other respects.
The appellant, Doris Spharler, pled "guilty" to an indictment charging her with the offense of fiduciary misapplication
of property, $200.00 or more but not more than $10,000.00, a third degree felony at that time. Spharler was placed on
deferred adjudication probation for five years. Subsequently, the State alleged that Spharler violated the conditions of
her probation, and moved for revocation and adjudication. At the hearing on the State's motion, Spharler pled "true" to
two of the State's allegations, and the trial judge revoked Spharler's probation, adjudicated her guilty, and sentenced
her to two years in prison. Spharler's sentence was imposed May 19, 2000. On June 21, 2000, Spharler filed a pro se
notice of appeal without filing a motion for a new trial. Because Spharler did not file a motion for new trial, the notice
of appeal was due to be filed June 19, 2000. Tex. R. App. P. 26.2(a)(1).
Our initial review of the record in this appeal indicated that we did not have jurisdiction because the notice of appeal
was late, so we ordered Spharler to show cause in writing why the appeal should not be dismissed for lack of
jurisdiction. In response, Spharler's appellate attorney filed a response stating that Spharler did not have effective
representation by counsel during a critical stage of a criminal proceeding--specifically, the period of time immediately
proceeding the deadline for filing a motion for a new trial and for filing a notice of appeal. The appellate attorney
explained that Spharler's trial attorney moved to withdraw the day after Spharler filed her pro se notice of appeal and
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that the attorney had been permitted to withdraw the following day. Spharler's appellate attorney further stated that
although the trial attorney's motion to withdraw states that he advised his client about her right to appeal, the motion
does not indicate when or how Spharler was advised. The appellate attorney specifically pointed out that the deadlines
listed in the motion to withdraw had all expired prior to the filing of the motion. The appellate attorney concluded by
asking us to abate the appeal and to remand the cause to the district court with new filing deadlines for the filing of a
motion for new trial or notice of appeal with the advice of appellate counsel. We are unable to do so.
To invoke this court's jurisdiction for an appeal from a criminal conviction, an appellant must follow the requisites for
the perfection of appeal. See Tex. R. App. P. 25.2. The rules of appellate procedure require an appellant to perfect an
appeal by filing a notice of appeal within thirty days after the day sentence is imposed or suspended in open court. See
id. R. 26.2. The appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline
for filing the notice of appeal, the appellant files a notice of appeal in the trial court, and files a motion for extension
of time, providing a reasonable explanation for the extension, in the court of appeals. See Tex. R. App. P. 26.3; Olivo
v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Although Spharler filed her notice of appeal within the fifteen-
day grace period provided for by the rules of appellate procedure, she did not file a motion for extension of time.
When a notice of appeal is filed within the fifteen-day period, but no timely motion for an extension of time is filed,
the court of appeals lacks jurisdiction. See Olivo, 918 S.W.2d at 522. The rules of appellate procedure cannot be used
to suspend the deadline for filing the notice. See Tex. R. App. P. 2; Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.
Crim. App. 1998). Because we have no jurisdiction over this appeal, this appeal is dismissed for lack of jurisdiction.
(1)
PER CURIAM
DO NOT PUBLISH
1. Although the attorney's reasons for the late notice of appeal does not provide a basis for establishing jurisdiction,
those reasons could possibly serve as the basis for obtaining an out-of-time appeal under article 11.07 of the Texas
Code of Criminal Procedure.
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