The 

Fourth Court of Appeals

San Antonio, Texas

January 29, 2014

No. 04-14-00001-CR

Daniel James WEEMS,

Appellant

v.

The STATE of Texas,

Appellee

From the 38th Judicial District Court, Medina County, Texas

Trial Court No. 12-12-11120-CR

Honorable Camile G. Dubose, Judge Presiding

ORDER

The trial court imposed sentence in the underlying cause on September 11, 2013. 

Because appellant did not file a timely motion for new trial, the notice of appeal was due to be 

filed October 11, 2013.

1

 TEX. R. APP. P. 26.2(a)(1). A motion for extension of time to file the 

notice of appeal was due on October 28, 2013. TEX. R. APP. P. 26.3. On October 28, 2013, 

appellant filed a notice of appeal2 and a motion for extension of time in the trial court.

A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction. See 

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). A late notice of appeal may be 

considered timely so as to invoke a court of appeals’ jurisdiction if (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. See id. Although appellant filed the 

notice of appeal and motion for extension of time within the fifteen day grace period, appellant 

filed his motion for extension of time with the trial court instead of with this court. It is therefore 

ORDERED that appellant show cause in writing within two weeks from the date of this order 

1 The deadline for filing the motion for new trial was October 11, 2013, and the motion for new trial was not filed 

until October 28, 2013. In an amended notice of appeal, appellant’s attorney makes reference to the appellant 

having tendered his motion for new trial to his jailors on October 16, 2013; however, October 16, 2013 was after the 

October 11, 2013 deadline.

2 We liberally construe appellant’s letter requesting the trial court’s permission to appeal as a notice of appeal.

 
why this appeal should not be dismissed for lack of jurisdiction.3

 See id.; see also Ater v. Eighth 

Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (out-of-time appeal from final felony 

conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas 

Code of Criminal Procedure). All other appellate deadlines are SUSPENDED pending this 

court’s resolution of the jurisdictional issue.

_________________________________

Catherine Stone, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 29th day of January, 2014.

___________________________________

Keith E. Hottle

Clerk of Court

3 We also note the trial court’s certification in this appeal states that “this criminal case is a plea-bargain case, and 

the defendant has NO right of appeal.” The clerk’s record contains a written plea bargain, and the punishment 

assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant; therefore, 

the trial court’s certification accurately reflects that the criminal case is a plea-bargain case. See TEX. R. APP. P. 

25.2(a)(2). Rule 25.2(d) of the Texas Rules of Appellate Procedure provides, “The appeal must be dismissed if a 

certification that shows the defendant has a right of appeal has not been made part of the record under these rules.” 

TEX. R. APP. P. 25.2(d).