The State of TexasAppellee/s



# Fourth Court of Appeals

**San Antonio, Texas**

February 4, 2014

N o. 04

- 14

- 00060

- CR

John DONOHUE

, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 187th Judicial District Court, Bexar County, Texas

Trial Court No. 2013CR3514 Honorable Raymond Angelini, Judge Presiding



### ORDER

The trial court imposed sentence on John Donohue on October 25, 2013. Therefore, either a motion for new trial or a notice of appeal was due thirty days later on November 25,

2013. See T EX

. R. A PP

. P. 21.4(a); 26.2(a). The clerk’s r ecord contains a motion for new trial and a notice of app eal, both bearing file

- stamps dated December 5, 2013.

A pleading that is received within ten days after the filing deadline is considered timely filed if: “(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery servic e ; (B) it was placed in an envelope or wrapper properly addressed and stamped; and (C) it was deposited in the mail o r delivered to a commercial delivery service o n or before the last day for filing.” T EX

. R. A PP

. P. 9.2(b)(1). Under the “prisoner mailbox rule,” a pro se prisoner’s pleading is deemed filed at the time it is delivered to the appropriate prison authorities for mailing if it is in a properly addressed and stamped envelope and is sent to the proper clerk by United States Postal Service or a co mmercial delivery service. Campbell v. State , 320 S.W.3d 338, 342 (Tex. Crim. App. 2010).

Although the motion for new trial and notice of appeal were received by the Bexar County District Clerk within ten days after the filing deadline, the record befor e us is insufficient to determine whether the “prisoner mailbox rule” applies. The certificate of service accompanying Donohue’s motion for new trial and the unsworn declarations attached to both the motion for new trial and the notice of appeal are all d ated November 25, 2013. However, the

record does not indicate whether the pleadings were filed by mail, and if so, to whom they were

delivered for mailing, when they were delivered for mailing, to whom they were addressed , and whether they were properly stamped.A ppellant also filed a motion for extension of time to file his notice of appeal. If either the motion for new trial or the notice of appeal was timely filed, the appeal is timely and the

motion for extension of time is moot. However, if Donohu e cannot show the motion for new trial or the notice of appeal was timely filed, we must consider the motion for extension of time.

The motion was due December 10, 2013, fifteen days after the deadline for filing the notice of appeal. See T EX

. R. A PP

. P. 26.3. However, the motion was not received and filed in this court until December 16, 2013. The certificate of service accompanying the motion is dated December 13, 2013, after the deadline for filing. Accordingly, the “prisoner mailbox rule”

cannot app ly and the motion is denied as untimely.

We therefore order a response from Donohue due F ebruary 19, 2014

, establishing that the motion for new trial or notice of appeal was timely filed by mail or otherwise showing cause why this appeal should not be dismissed for want of jurisdiction

. See Olivo v. State , 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (holding that timely notice of appeal is necessary to invoke court of appeals’ jurisdiction). Appellant has the burden to request the trial co urt clerk

prepare a supplemental clerk’ s record containing any pleadings and orders necessary to establish this court’s jurisdiction. Appellant must file a copy of any such request with this court. If appellant fails to satisfactorily respond within the t ime provided, the appeal will be dismissed.

All deadlines in this matter are suspended until further order of the court.

_________________________________ Luz Elena D. Chapa, Justice

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

court on this 4th day of February, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court