                                                                      The State of TexasAppellee




                            Fourth Court of Appeals
                                   San Antonio, Texas
                                        February 11, 2014

                                       No. 04-13-00667-CR

                                  Raymond Sandoval GARCIA,
                                          Appellant

                                                 v.

                                      The STATE of Texas,
                                            Appellee

                   From the County Court at Law No. 7, Bexar County, Texas
                                   Trial Court No. 383282
                           Honorable Genie Wright, Judge Presiding


                                          ORDER

Sitting:       Catherine Stone, Chief Justice
               Karen Angelini, Justice
               Luz Elena D. Chapa, Justice

       For the reasons that follow, we abate this appeal and remand it to the trial court for an
evidentiary hearing.

        Raymond Sandoval Garcia filed a notice of appeal from the trial court’s judgment
convicting and sentencing him of one count of Assault Bodily Injury – Fam/Hou. Garcia did not
file a motion for new trial; therefore, his notice of appeal was due thirty days after sentence was
imposed. See TEX. R. APP. P. 26.2(a)(1), 26.3. The clerk’s record contains three copies of the
judgment: one states sentence was imposed July 30, 2013, another states sentence was imposed
July 31, 2013, and a third states sentence was imposed August 2, 2013. It is unclear from the
record which copy of the judgment was signed the most recently. Because the deadline for filing
a notice of appeal is calculated from the date on which sentence was imposed, we are unable to
determine when the notice of appeal was due.

        The record contains a notice of appeal signed by trial counsel, Karen O. Raleigh. The
certificate of service states it was transmitted to the Bexar County District Attorney’s Office on
September 3, 2013. However, it does not appear that Raleigh filed the notice of appeal with the
trial court clerk. Instead, it appears the notice of appeal was mailed by appellant. The record
contains an envelope bearing appellant’s name and a return address indicating it was mailed from
the Bexar County Adult Detention Center. The envelope is addressed to the “4th Court of
Appeals” and bears a September 4, 2013, postmark. The notice of appeal was file-stamped by
the Bexar County Clerk’s office on September 5, 2013.

       Because the timeliness of Garcia’s appeal may depend upon who mailed the notice of
appeal and when it was mailed or delivered to prison authorities for mailing, we ordered Garcia’s
appellate counsel to file a response addressing these questions. Counsel responded that he had
been unable to obtain a meaningful answer to the questions from Garcia and requested a bench
warrant to obtain Garcia’s testimony on the issue.

        We abate this appeal and remand the case to the trial court to conduct an evidentiary
hearing and make the fact findings necessary for us to determine whether we have jurisdiction
over this appeal. The trial court shall secure appellant’s presence at the hearing and may require
that of trial counsel. We order the trial court to make findings of fact on each of the following
issues:

   1. On what date was sentence imposed?

   2. Did trial counsel or Garcia mail the notice of appeal that was contained in the envelope
      addressed to the court of appeals?

   3. If the answer to question 2. is trial counsel, on what date did counsel deposit the notice of
      appeal in the mail?

   4. If the answer to question 2. is Garcia, how did he cause the notice of appeal to be mailed
      and on what date did he do so?

        The clerk and court reporter are ordered to file in this court, by March 4, 2014, (1) a
reporter’s record of the hearing, and (2) a supplemental clerk’s record containing the court’s
written findings of fact addressing the above issues.




                                                    _________________________________
                                                    Luz Elena D. Chapa, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 11th day of February, 2014.



                                                    ___________________________________
                                                    Keith E. Hottle
                                                    Clerk of Court
