Julio Ramirez Mestas, a Texas state prisoner, was convicted of multiple offenses and his appellate attorney filed an Anders brief. Mestas requested, but did not receive, a copy of his trial records so that he could file pro se appellate briefs. The court of appeals affirmed the convictions. Mestas then filed post-conviction applications for writs of habeas corpus alleging he was denied his right to appeal because he was deprived of the trial records. The CCA granted Mestas an out-of-time appeal, stating that the time limits in the Texas Rules of Appellate Procedure (TRAP) “shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.”
Instead of filing notices of appeal, Mestas filed motions for new trial. He then filed notices of appeal after the thirty days had expired. The court of appeals then dismissed the appeals for want of jurisdiction because the notices of were untimely. Mestas filed a petition for discretionary review with the CCA which was granted.
The CCA noted that motions for new trial are covered by the TRAP. Normally, a motion for new trial extends the time for filing a notice of appeal. The question was whether the granting of an out-of-time appeal, which did not specifically authorize the filing of a motion for new trial, permits such a filing. The CCA held that the granting of the out-of-time appeal “restores the defendant to the position he occupied immediately after the trial court signed the judgment of conviction.” Because the defendant is returned to the point where he can file a notice of appeal, he is also returned to the point where he can file a motion for new trial.
Since, under the TRAP, the filing of a motion for new trial extends the time for filing a notice of appeal, such an extension of time occurs when the motion for new trial is filed following the granting of an out-of-time appeal. Therefore, the court of appeal erred in dismissing the appeal for want of jurisdiction. The court of appeals was reversed and the case returned to that court for consideration of Mestas’s appeal. See: Mestas v. State, 214 S.W.3d 5 (Tex.Crim.App. 2007).
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