

NO. 07-11-0112-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
MAY 11, 2011
______________________________
 
 
KENNETH RAY MCCAIN, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
 
_________________________________
 
FROM COUNTY COURT AT LAW NO. 1 OF POTTER COUNTY;
 
NO. 127,946; HONORABLE W.F. "CORKY" ROBERTS,
JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER GRANTING MOTION
FOR REHEARING
            By opinion dated March
29, 2011, this Court dismissed this appeal for want of jurisdiction due to the
notice of appeal having been untimely filed.[1]  On April 13, 2011, Appellant filed a Motion for Rehearing explaining that the
trial court's judgment reflected an incorrect sentencing date.  The motion was accompanied by a Nunc Pro Tunc Judgment
reflecting Appellant was sentenced on January 25, 2011, and not on January 24,
2011.  This Court requested that the
State file a response to Appellant's Motion
for Rehearing.  In its response, the
State concurs with Appellant that he was sentenced on January 25, 2011.  Calculating from the new sentencing date and
applying the fifteen-day extension period of Rule 26.3 of the Texas Rules of
Appellate Procedure, Appellant's notice of appeal was timely filed on March 11,
2011. 
We grant Appellant's motion for rehearing, withdraw our
opinion and judgment of March 29, 2011, and reinstate this appeal.  Our disposition further requires that we
grant Appellant's Motion to Extend Time
for Filing Notice of Appeal which was filed on March 11, 2011, in order for
Appellant to benefit from the fifteen-day extension period of Rule 26.3.[2]  All briefing deadlines shall be in accordance
with the applicable Rules of Appellate Procedure.
                                                                                    Patrick A. Pirtle
                                                                                          Justice
 
Do not publish.
 
 




[1]The
trial court's judgment reflected that sentence was imposed on January 24, 2011,
making the notice of appeal due on February 23, 2011.  Tex. R. App. P. 26.2(a)(1).  Applying the fifteen-day extension period of
Rule 26.3 of the Texas Rules of Appellate Procedure advanced the deadline to
March 10, 2011.  Because the notice of
appeal and a motion for extension of time were not filed until March 11, 2011,
based upon that record, we had no choice but to dismiss the appeal for want of
jurisdiction.    


[2]The
Court accepts Appellant's counsel's reasonable explanation for the delay in
filing the notice of appeal.  See Tex. R. App. P. 10.5(b)(A).


