Ex Parte Mario Amaro Castillo

COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-11-00172-CR

EX PARTE MARIO AMARO CASTILLO

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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant Mario Amaro Castillo attempts to appeal from the trial court’s order denying his application for writ of habeas corpus. The trial court signed the order denying Appellant’s application for writ of habeas corpus on March 30, 2011, and Appellant’s notice of appeal was due April 29, 2011. See Tex. R. App. P. 25.2(b), 26.2(a)(1). Appellant did not file his notice of appeal until May 17, 2011. Because Appellant did not timely file a notice of appeal, we dismiss the appeal for want of jurisdiction.

Rule 26.3 provides that an “appellate court may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).” Tex. R. App. P. 26.3 (emphasis added). Appellant filed both his notice of appeal and a motion for extension of time to file his notice of appeal on May 17, 2011, one day after the fifteen-day deadline set forth in rule 26.3.2 We therefore asked Appellant’s counsel to provide proof that the notice of appeal was mailed to the trial court by the May 16, 2011 deadline, see Tex. R. App. P. 9.2(b)(1), and Appellant’s counsel provided internet print-outs indicating that the notice of appeal was picked up for delivery by Federal Express at 6:49 p.m. on May 16, 2011, and delivered to the trial court clerk on May 17, 2011.

Rule of appellate procedure 9.2(b)(1)(A) expressly states that “a document received within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail.” Tex. R. App. P. 9.2(b)(1)(A) (emphasis added). A document mailed using a private delivery service such as Federal Express does not invoke the “mailbox rule” embodied in rule 9.2(b)(1)(A). Id. Thus, Appellant’s notice of appeal was not timely filed.3 See Tex. R. App. P. 9.2(b)(1)(A), 25.2(b), 26.3. The court of criminal appeals has expressly held that without a timely filed notice of appeal or motion for extension of time, we cannot exercise jurisdiction over an appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Because Appellant’s notice of appeal was not timely filed, we dismiss this case for want of jurisdiction. See Tex. R. App. P. 9.2(b)(1)(A), 25.2(b), 26.2(a), 26.3, 43.2(f).

PER CURIAM PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b) DELIVERED: June 16, 2011