Andrew Anderson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 30, 2021
• Docket: 05-19-01492-CR
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0279-20

ANDREW ANDERSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY

MCCLURE, J., delivered the opinion of the Court in which KELLER, P.J., and HERVEY, RICHARDSON, NEWELL, and SLAUGHTER, JJ., joined. YEARY, J., filed a dissenting opinion. WALKER, J., filed a dissenting opinion. KEEL, J., dissented. OPINION

Is an incarcerated defendant entitled to the 10-day grace period for filing a

notice of appeal when he omitted the words “district clerk” from the envelope he

used to send his notice of appeal? In this case, no. Because Appellant’s notice of ANDERSON ― 2

appeal does not satisfy the mailbox rule or the prisoner mailbox rule, the notice was

untimely. Without timely notice of appeal, the court of appeals properly dismissed

for want of jurisdiction.

PROCEDURAL HISTORY

Pursuant to a plea bargain, Appellant pleaded guilty to the offense of

aggravated assault with a deadly weapon and was placed on eight years of deferred

adjudication. On October 7, 2019, following the State’s filing of a motion to proceed

to adjudication, Appellant entered an open plea of true to the allegation in the

motion. On October 7, 2019, the trial court found the allegation true, found

Appellant guilty, and assessed punishment at eight years’ imprisonment. The trial

court certified that Appellant has the right to appeal.

Because Appellant did not file a motion for new trial, his notice of appeal

deadline was November 6, 2019. Appellant mailed a letter from jail requesting an

appeal. Although the letter was not dated, the envelope was postmarked November

4, 2019. The envelope was not addressed to the clerk, but instead, it was addressed

to the convicting court; specifically: “Dallas County Court #265 133 N Riverfront

blvd. Dallas Tx 75207 [sic].” The letter was not filed by the district clerk until

December 2, 2019. ANDERSON ― 3

APPEAL

A defendant perfects an appeal by filing with the trial court clerk, within thirty

days after the date sentence was imposed, or within ninety days after sentencing if

the defendant timely filed a motion for a new trial, a written notice of appeal showing

his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a), (b)). In the instant case,

the Fifth Court of Appeals dismissed for lack of jurisdiction because the notice of

appeal was due on November 6, 2019, but was not file-stamped by the clerk until

December 2, 2019.

The intermediate court also held that Appellant was not entitled to the 10-day

grace period provided by Rule 9.2 of the Texas Rules of Appellate Procedure,

colloquially known as the “mailbox rule.” This rule 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 or a commercial delivery service.”

TEX. R. APP. P. 9.2(b)(1)(A))(emphasis added). The court of appeals recognized that,

although “proper clerk” is interpreted liberally 1, and includes an agent of the district

clerk or the clerk of the correct court of appeals, this letter was not sent to a clerk or

1 See Taylor v. State, 424 S.W.3d 39 (Tex. Crim. App. 2014)(holding that because the address to which appellant sent his notice of appeal was “sufficiently specific” for the document to be received in the proper place at the proper time, the notice of appeal was properly filed for purposes of the mailbox rule); Moore v. State, 840 S.W.2d 439 (Tex. Crim. App. 1992)(holding an envelope addressed to “Bond Forfeiture Clerk” is sufficient even though it did not specify district clerk or county clerk; therefore, the mailbox rule applied because the document showed who it was intended for and minor imperfections in the address should not deprive a prisoner of the grace period). ANDERSON ― 4

an agent of the clerk, it was instead sent to Dallas County Court #265. Because

Appellant omitted the words “district clerk” or “clerk” from the address, the letter

did not find its way to the district clerk until after the notice of appeal deadline.

Therefore, the court of appeals held that Appellant’s notice of appeal was untimely

and dismissed the appeal for lack of jurisdiction.

ANALYSIS

The Mailbox Rule and the Prisoner Mailbox Rule

We granted review to determine whether an incarcerated defendant is entitled

to the 10-day grace period for filing a notice of appeal if he omitted the words

“district clerk” from the envelope he used to send his notice of appeal. Appellant

contends that the court of appeals read Rule 9.2(b)(1)(A) too strictly, that the “proper

clerk” language should be construed liberally, and that minor imperfections in the

address should not deprive a pro se prisoner of the benefit of the mailbox rule, much

like this Court’s holding in Moore v. State, 840 S.W.2d 439 (Tex. Crim. App. 1992).

In Moore, the appellant filed a motion to appeal a final judgment upon

forfeiture of an appearance bond for which Moore was the surety. Moore addressed

the envelope to “Bond Forfeiture Clerk” instead of to the district clerk. This Court

held that once Appellant’s cost bond arrived in the receiving department of the Frank

Crowley Courts Building, it was within the effective custody or control of the district

clerk. Moore, 840 S.W.2d at 441. Therefore, we held the envelope was “sufficiently ANDERSON ― 5

specific” even though it did not specify the district clerk or the county clerk because

the envelope showed who the document was intended for. Id. at 440.

In this case, Appellant contends that omitting the words “District Clerk” was

a minor imperfection that would not prevent the chief clerk in the trial court from

receiving the notice of appeal within the grace period. Appellant argues that he

“generally” sent his notice to the district clerk and the face of the document states

the court and cause number. Therefore, like Moore, he was entitled to the grace

period to file notice of appeal.

Appellant’s reliance on Moore is misplaced under both the mailbox rule (TEX.

R. APP. P. 9.2(b)) and the equitable prisoner mailbox rule.2 Under the prisoner

mailbox rule, the pleadings of pro se inmates are deemed filed at the time they are

delivered to prison authorities for forwarding to the court clerk. Taylor v. State, 424

S.W.3d 39, 44 (Tex. Crim. App. 2014). However, this Court has held that the

prisoner mailbox rule is still subject to the requirements of Rule

9.2(b). See Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010).

Rule 9.2(b) has three requirements: (i) the notice was sent to the proper clerk

by United States Postal Service or a commercial delivery service; (ii) the notice was

placed in an envelope or wrapper properly addressed and stamped; and (iii) the

2 Appellant’s argument on appeal, and in the PDR, relies exclusively on the “mailbox rule” of 9.2(b)(1), which gives an additional ten days to anyone who files pleadings by mail. Although Appellant does not raise the prisoner mailbox rule, we will consider and discuss it. ANDERSON ― 6

notice was deposited in the mail or delivered to a commercial delivery service on or

before the last day for filing.

(i) Requirement One: “Proper Clerk”

In Moore, the Court held that an address is sufficient as long as it is generally

addressed to the clerk. Moore, 840 S.W.2d at 440. Here, Appellant’s notice was not

“generally” addressed to the clerk. In fact, it was not addressed to the clerk at all, it

was addressed to the trial court. Therefore, unlike in Moore, Appellant did not send

his notice to the “proper clerk,” much less any “clerk.” Nor was Appellant’s

envelope addressed to an agent of the clerk. In Moore, this Court reasoned that “an

employee who works in the [building’s] receiving department . . . whose duties

include processing and forwarding mail, can properly be considered an agent of the

district clerk. Therefore, once [Moore’s] cost bond arrived in the receiving

department, it was within the effective custody or control of the district clerk.”

Moore at 441.

The facts in this case are distinguishable from Moore in that here, the envelope

was not addressed to the district clerk or any other clerk. Instead, it was addressed

to Dallas County Court #265. Even if the district clerk and the district court are

located in the same building, as they were in Moore, the application of the rule in

that case was not based on proximity, but rather based on the fact that the envelope

was addressed to a clerk. Regardless of the location of the district clerk in Dallas ANDERSON ― 7

County, the district clerks in the other 253 counties in Texas might not be in the

same building as the district courts.

Further distinguishing this case from Moore is that the trial court is not an agent

of the district clerk, and for good reason: judges are ethically prohibited from

receiving ex parte communications from a party. Instead, it is the clerk that is

responsible for maintaining records filed in the court. TEX. GOV’T CODE § 51.303.

Relevant to these proceedings, the clerk is also responsible for forwarding a copy of

the notice of appeal to the appellate court and for transmitting the clerk’s record to

the appellate court upon perfection of an appeal. See TEX. R. APP. P. 25.2(e); 35.3(a).

Therefore, if a notice of appeal is not filed with the proper clerk, the clerk cannot

fulfill his or her duties. Therefore, Rule 9.2(b)’s requirement of mailing to the proper

clerk is essential and ensures fairness in the judicial proceeding.

(ii) Requirement Two: “Properly Addressed”

In Taylor, the Appellant filed his notice of appeal in the court of appeals instead

of with the clerk. Pursuant to Tex. R. App. P. 25.2(c)(1), the clerk of the court of

appeals file-stamped the motion and forwarded the notice to the clerk of the

convicting court. This Court held that Taylor’s notice of appeal arrived in the proper

court within the window of time permitted under the mailbox rule, rendering it

timely filed. ANDERSON ― 8

In the instant case, Appellant’s envelope was not addressed to the court of

appeals. If it had been, the intermediate court would have been mandated under the

rules of appellate procedure to forward the notice of appeal to the trial court clerk.

Instead, the envelope was addressed to the trial court.

Three intermediate courts that have addressed this issue have held that Rule 9.2

does not include mailing notice to an attorney, the trial court, or a trial judge. Turner

v. State, 529 S.W.3d 157, 159 (Tex. App.—Texarkana 2017, no pet.); Bowen v.

State, 05-19-01530-CR (Tex. App.—Dallas Mar. 3, 2020, no pet.); Herrera v. State,

04-19-00725-CR (Tex. App.—San Antonio July 22, 2020, no pet.). A strict reading

of Rule 9.2(b)(1)(B), as the Fifth Court of Appeals did in this case, supports these

holdings. Therefore, Appellant’s envelope addressed to “Dallas County Court #265”

is not properly addressed according to the plain language of Rule 9.2(b)(1)(B).

(iii) Requirement Three: “In the mail before last day of filing”

Appellant complied with this last requirement. The record shows that Appellant’s

sentence was imposed on October 7, 2019, and no motion for new trial was held.

Therefore, Appellant’s notice of appeal was due by November 6, 2019. Appellant’s

pro se motion was postmarked on November 4, 2019, providing “conclusive proof”

of the date of mailing. TEX. R. APP. P. 9.2(b)(2)(A). However, the use of the

connector “and” in the rule requires that all three elements be present. Appellant has

failed to comply with two of the three elements of the rule. ANDERSON ― 9

Appellant suggests that this Court ignore the first two requirements of Rule 9.2

and allow Appellant to avail himself of the mailbox rule simply because he mailed

the notice of appeal prior to the deadline. Although our interpretation of Rule 9.2(b)

is strict, it is not improper. And if mailing the document to the convicting court was

not sufficient under Rule 9.2, then it also would not qualify under the common law

“prisoner mailbox rule,” assuming Appellant had raised such an argument.

One of the dissents opines that the Rules Committee should consider

incorporating the prisoner mailbox rule into Rule 9.2(b). Dissenting Opinion by

Judge Yeary, p. 5. This Court already did so in Campbell where we held:

Like our sister courts, we decline to penalize a pro se inmate who timely delivers a document to the prison mailbox. We find the analysis of the United States Supreme Court in Houston v. Lack, 487 U.S. 266 (1988) to be compelling. We see no reason for this Court to hold contrarily to both the United States and Texas Supreme Courts. Therefore, we shall apply those considerations to an analogous situation, such as the present case. We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.

Campbell, 320 S.W. 3d at 344. However, it is important to recognize that the litigant

in Campbell properly addressed his notice to the correct clerk (specifically, the clerk

of the specified Potter County district court).

Similarly, in Houston v. Lack, 487 U.S. 266 (1988), cited by this Court for

authority in Campbell, the pro se inmate properly addressed his notice of appeal to

the District Clerk in compliance with the requirements as set forth in provision 28 ANDERSON ― 10

USCS 2107 (requiring a notice of appeal from the judgment of a Federal District

Court in a civil case be filed within 30 days after the entry of that judgment) and

Rule 4(a)(1) of the Federal Rules of Appellate Procedure (requiring that such a notice

of appeal be filed with the clerk of the District Court). Likewise, the pro se litigants

in the Texas Supreme Court cases cited by the dissent complied with Rule 9.2(b) and

Rule 5 of the Texas Rules of Civil Procedure. In Ramos v. Richardson, 228 S.W.3d

671, 673 (Tex. 2007), the record indicates the pro se inmate did everything necessary

to comply with the rules by addressing his notice to the proper clerk. Similarly, in

Warner v. Glass, 135 S.W.3d 681 (Tex. 2004) the Texas Supreme Court recognized

that the pro se inmate otherwise complied with Rule 5 of the Texas Rules of Civil

Procedure3 by properly addressing the document and holding that “[O]nce a party

has satisfied his duty to put a legal instrument in the custody and the control of the

court clerk, he should not be penalized for errors made by the court clerk.” Id. at

684–85.

In the above cited cases, the issue was error outside of the inmate’s control:

either clerical or postal system error, and the equitable decision was made that, since

3 Rule 5 of the Texas Rules of Civil Procedure states: “If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time.” (Emphasis added). ANDERSON ― 11

the pro se litigant complied with the applicable rules, there should be a tolling of the

jurisdictional timeline.

The error here is different. In this case, the delay in the receipt of Appellant’s

notice of appeal by the proper clerk was caused by Appellant’s failure to comply

with Rule 9.2(b). Our holding in Campbell incorporated the prisoner mailbox rule

into Rule 9.2; it did not abolish the inmate’s compliance with the rule. Therefore, we

decline to adopt both the dissent’s opinions and Appellant’s request that a pro se

litigant need not follow Rule 9.2(b), which specifically designates with whom the

notice should be filed. Without compliance with the rules, there is a greater potential

for filings to get lost when they are mailed directly to the wrong recipient.

All of the above notwithstanding, Appellant argues that our strict application of

the mailbox rule penalized him “on the bases that he lacked control over the county

mail system and could not be present to assure that the clerk filed his tendered notice

of appeal.” Although the record did not contain direct evidence of the date on which

the district court received the notice, his notice was stamped “filed” on December 2,

2019, 56 days after the court’s judgment was entered. Appellant contends that he

should be allowed to show that his envelope was received within ten days by the

mailroom on behalf of the district clerk. Appellant suggests, in the interest of judicial

economy, that this Court should abate the appeal to allow Appellant evidentiary ANDERSON ― 12

proceedings to show that his notice of appeal was timely received by the receiving

department, if not by the district clerk.

What Appellant seeks here is not the supplementation of the record, but the

creation of a new record. While Rule 34.5(c)(1) of the Texas Rules of Appellate

Procedure would permit Appellant to supplement an appellate record with material

that has been omitted from the appellate record, the rule does not permit Appellant

to create a new appellate record. TEX. R. APP. P. 34.5(c)(1); see also Solomon v.

State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); see also Williams v. State, 937

S.W.2d 479, 487 (Tex. Crim. App. 1996). Appellant’s proper procedural vehicle for

the development of facts regarding the date of receipt of his notice by the district

clerk would be a writ of habeas corpus.

CONCLUSION

Because Appellant did not comply with the plain, unambiguous mailbox rule, he

did not invoke the jurisdiction of the appellate court. We affirm the judgment of the

court of appeals dismissing the appeal for lack of jurisdiction.

Delivered: June 30, 2021

PUBLISH