Artis Charles Harrell v. Branch Brinson

Opinion

Opinion issued December 10, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00786-CV ——————————— ARTIS CHARLES HARRELL, Appellant V. BRANCH BRINSON, Appellee

On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2006-02867

MEMORANDUM OPINION

This is an attempted appeal from an “Order of (Partial) Dismissal for Want

of Prosecution,” a “Final Judgment,” and an “Order Sustaining a Contest” signed

March 25, 2013 and May 7, 2013. Appellant, Artis Charles Harrell, filed his notice

of restricted appeal on September 6, 2013. Appellant’s notice of restricted appeal does not comply with the

requirements for proceeding as a restricted appeal. See TEX. R. APP. P. 25.1(d)(7).

Specifically, the notice (1) does not “state that the appellant is a party affected by

the trial court’s judgment but did not participate—either in person or through

counsel—in the hearing that resulted in the judgment complained of;” (2) does not

“state that the appellant did not timely file either a postjudgment motion, request

for findings of fact and conclusions of law, or notice of appeal;” and (3) is not

verified by appellant. Id. On October 31, 2013, this Court notified appellant of his

failure to comply with Texas Rule of Appellate Procedure 25.1 and instructed

appellant to file an amended notice of appeal within 10 days. See TEX. R. APP. P.

25.1(g). Appellant was notified that failure to file an amended notice of appeal,

which corrected the defects, would result in dismissal of his appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a).

In response, appellant attempted to file an amended notice of restricted

appeal. However, appellant’s amended notice of restricted appeal still does not

meet the requirements of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 25.1(d)(7).1

1 Additionally, appellant’s amended notice of appeal appears only to relate to appellant’s appeal of the May 7, 2013 “Order Sustaining a Contest.” Appellant has failed to amend his notice of restricted appeal for the “Order of (Partial) Dismissal for Want of Prosecution” and the “Final Judgment” signed March 25, 2013. 2 Further, appellant’s deficient notice of restricted appeal reflects that

appellant is attempting to appeal the “Order of (Partial) Dismissal for Want of

Prosecution” and the “Final Judgment” signed March 25, 2013. An attempted

appeal from these matters was dismissed by this Court on July 11, 2013 for

nonpayment of all required fees. See Harrell v. Brinson, No. 01-13-00313-CV,

2013 WL 3523775, at *1 (Tex. App.—Houston [1st Dist.] July 11, 2013, no pet.).

Appellant is not entitled to a second appeal. See Minnfee v. Proyor, No. 01-12-

00943-CV, 2013 WL 709254, at *1 (Tex. App.—Houston [1st Dist.] Feb. 26,

2013, no pet.); Velasquez v. Lunsford, No. 14-99-00186-CV, 2000 WL 64115, at

*1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2000, no pet.).

Finally, appellant’s deficient notice of restricted appeal also reflects that

appellant is attempting to appeal an order sustaining a contest to an affidavit of

indigence signed on May 7, 2013. We may review a challenge to an order

sustaining a contest to an affidavit of indigence only when it is made part of an

already pending appeal from a final judgment or other appealable order. See

Dorsett v. Archstone Memorial Heights, No. 01-12-00570-CV, 2012 WL 3234119,

at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, no pet.); see also TEX. R. APP.

P. 20.1(j). The order appellant seeks to have reviewed was entered in connection

with appellant’s previously dismissed appeal and was addressed by this Court in

that case.

3 On October 31, 2013, the Court notified appellant of its intent to dismiss this

appeal for want of jurisdiction unless appellant filed a response demonstrating this

court’s jurisdiction within 10 days. See TEX. R. APP. P. 42.3(a). Appellant has not

filed an adequate response.

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 42.3(a). We dismiss all other pending motions as moot.

PER CURIAM Panel consists of Justices Keyes, Higley, and Massengale.