PD-0180-15 February 17, 2015
COA No. 02-12-00576-CR
COURT OF CRIMINAL APPEALS OF TEXAS
PATRICIA ELIZABETH HARKCOM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
MITCHELL LEGAL SERVICES PLLC
RICHARD MITCHELL # 24047319 ATTORNEY
211 S Rusk St Weatherford, Texas 76086 817 594 1088 Fax 817 585 4778
ORAL ARGUMENT IS REQUESTED Table of Contents
Index of Authorities ........................................................................ iii
Statement Regarding Oral Argument ............................................. 1
Statement of the Case...................................................................... 1
Statement of Procedural History..................................................... 3
Ground(s) for Review ....................................................................... 4
Question(s) for Review ..................................................................... 5
Did the Court of Appeals disregard the perfection of appeal rules set forth in Few v. State,230 S.W.3d 184 (Tex. Crim. App. 2007) and Texas Rules of Appellate Procedure 25.2(c)(2)? ....................................................................................... 5
Argument ......................................................................................... 5
Conclusion and Prayer for Relief..................................................... 9
Signature.......................................................................................... 9
Certificate of Service...................................................................... 10
Certificate of Compliance………………………………………………11
Opinion .................................................................................... App. A Index to Authorities
Cases:
Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)................... 10
Clark v. State, 287 S.W.3d 355(Tex. App.—Texarkana 2009, no pet.)... ................................................................................................ 7
Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) ............ 8
Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio 2008, no pet.).............................................................................................. 8
Statutes:
Tex R. App P. 25.2(c)(2) ................................................................... 4 Statement Regarding Oral Argument
Ms. Harkcom requests oral argument upon the important issue
presented in this petition. The denial of the right to appeal her
conviction has serious constitutional implications for other Appellants
throughout the State of Texas.
Statement of the Case
On 31 December 2011, a Texas trooper detained Ms. Julie
Underhill for an equipment violation on her company’s car.1. The
trooper escorted her to his patrol car to be interviewed. 2 He noticed her
past arrests and an old drug conviction, so he asks her for consent to
search the car.3 Ms. Underhill declined the trooper’s invitation to
search her vehicle. The trooper called for a K-9 to perform an open air
search.4 While waiting, Ms. Underhill tells the trooper that other
employees of the company she works for use narcotics and has access to
the same vehicle.5 The trooper attempts to convince Ms. Underhill that
if there is something that the other employees use or possess then she
shouldn’t have been riding around with it and she wouldn’t be in
1 R.R. 3-20 2 R.R. 3-22. 3 R.R. 3-28. 4 R.R. 3-29. 5 C.R. 6, State’s Exhibit 2 11:00-15:30 trouble6 Ms. Underhill continued to say that she doesn’t know what is
in there and there are a number of employees who drive that vehicle on
a daily basis.7 Trooper testified that the driver has aged dramatically
which led him to believe that she is a user of illicit drugs.8 Later,
another officer came on the scene and saw drug paraphernalia behind
the back seat of the vehicle which led to a full search of the vehicle.9 A
small quantity of what was purported to be methamphetamine was
found also behind the back seat of the vehicle.10 Appellant was a
passenger in the car while Ms. Underhill was being investigated.11
Upon finding the drugs both were arrested.12 Ms. Underhill was never
prosecuted.13
Richard Trotter testified at the Motion for New Trial. Mr. Trotter
testified that he owns the vehicle that Ms. Underhill drove the day she
and the Appellant was arrested.14 He testified that there were at least
6 Id. 7 Id. 8 R.R. 3-56-57, C.R. 6, State’s Exhibit 2 34:00-35:00 9 R.R. 3-44 10 R.R. 3-44, 47 11 R.R. 3-22
12 R.R. 3-31
13 R.R. 4-20
14 R.R. 4-9 nineteen of his employees who drove the vehicle on a daily basis.15
Finally, he testified that the Appellant did not drive the vehicle and was
not employed by him.16 The Appellant was convicted and sentenced by
a jury on 2 October 2012. The trial court signed and filed its judgment
of conviction on 31 October 2012 while presumably sending the
Appellant a copy while she was in the county jail.17 That same day, the
Appellant a county inmate without access to an attorney, legal
materials and who is described by her trial attorney as “having some
deficits” communicated her desire to appeal through the only paperwork
that is given to them from the Hood County Court system.18
Appointed counsel was appointed the next day and filed the
motion for new trial on 8 November 2012.
The Court of Appeals found that the appeal should be dismissed
for want of jurisdiction.
Statement of Procedural History
The Appellant was convicted on 2 October 2012. Appellant filed a
court supplied application for appellate counsel because she wanted to
15 Id. 16 Id. 17 Appellant’s trial counsel did not apply for an appeal bond. 18 R.R. 4: 39, CR 1 appeal her case. On 3 December 2012, the trial court denied
Appellant’s motion for new trial. After briefing and oral argument the
2nd Court of Appeals in a split decision dismissed the appeal for want of
jurisdiction on 2 October 2014. En Banc reconsideration was denied on
15 January 2015.
Ground(s) for Review
1) The Justices of the Second Court of Appeals have disagreed on
a material question of law necessary to the court’s decision.19 See Tex.
R. App. P. 66.3(e).
2) The Justices of the Second Court of Appeals have misconstrued
a statute that would have disastrous effects on Pro Se litigants.20
19 Tex. R. App. P. 66.3(e) 20 Tex. R. App. P. 66.3(d) Issues Presented for Review
I. Did the Court of Appeals disregard the perfection of appeal rules set forth in Few v. State,230 S.W.3d 184 (Tex. Crim. App. 2007) and Texas Rules of Appellate Procedure 25.2(c)(2)?
Argument
An appeal is perfected if the notice shows the party’s desire to
appeal from the judgment.21 This idea restated beautifully by this
Court suggest “…that a court of appeals has jurisdiction over any
appeal in which the appellant files an instrument in a bona fide attempt
to invoke the appellate court’s jurisdiction.”22
This appeal is an example of an incarcerated, indigent,
inexperienced, pro se citizen who, in a bona fide attempt to invoke the
Second Court of Appeals jurisdiction, was turned away because for some
it’s easier “to elevate form over substance.”
After her conviction and sentence, Ms. Harckom sat in the Hood
county jail for 29 days before she was presented with the judgment of
conviction and associated paperwork.23 We can safely presume she sat
21 Tex. R. App Pro 25.2(c)(2) 22 Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007) 23 C.R. 19 there without the guidance of an attorney at this critical stage.24 That
very day she sent jail provided paperwork to the trial court requesting
it for an attorney to appeal her case.25 The Trial Court knew she
wanted to appeal her case and wrote APPEAL in big block letters.26 It
appointed an attorney that same day.
The Appellant’s argument is simple. Considering the totality of
the circumstances of this case, did the Appellant make a bona fide
attempt to invoke the appellate court’s jurisdiction when she filed her
application?
The Appellate court cites a plethora of cases that were decided
prior to this Court’s Few opinion. It also cites opinions after Few which
cannot and should not be considered as a bright line rule, since in the
Few opinion, this Court held that a Court of Appeals should look at any
instrument filed by an appellant to see if it was a bona fide attempt to
invoke their jurisdiction. In this case that instrument was a timely
filed affidavit of indigence and request for counsel that we can
reasonably presume based on the totality of the circumstances was an
attempt to appeal her conviction.
24 Majority Op. 3 25 C.R. 26 26 ID The request was acted upon by the trial court where he wrote
appeal. The 355th District Court trial judge knew exactly what the
Appellant wanted when he wrote APPEAL on the order. You are not
going too far out on a limb when you consider that, if the trial court
knew her desire, this Court would agree that the pro se Appellant,
attempted to appeal her case, during this critical stage the very day she
received the judgment with other associated paperwork.
This Court should refrain from a bright line holding that an
affidavit and request for appellate counsel is not a bona fide attempt to
invoke the jurisdiction as cited by the Second Court of Appeals.27 The
Second Court depended on these cases and suggested a bright line rule
whereby an affidavit and request is not a notice of appeal.
In Clark the Appellant filed an application for an attorney after
his conviction and was denied. The Texarkana Court in a short terse
opinion followed the unpublished opinion in Jarrels which also followed
a bright line rule.28 The Clark opinion failed to acknowledge Few.
27 Clark v. State, 287 S.W.3d 355 356(Tex. App.—Texarkana 2009, no pet.), Roberts v. State, 270 S.W.3d 662, 665 (Tex. App.—San Antonio 2008, no pet.). 28 Clark 287 S.W.3d 355 citing Jarrles v. State, 2001 WL 1301636 (Tex. App.—
Houston[1st Dist.] Oct 25 2001. No. pet.) The Second Court also cited Roberts for the same proposition as
Clark.29 Interestingly in Roberts the San Antonio Court remarked “The
word appeal is never mentioned in the document.” We can conclude
from the holding that if the word “Appeal” showed up in the document
then they could have considered and maybe even held in light of Few
that the appellant manifested a desire to appeal her case.
Finally the Second Court cited Jones which concluded that his
Attorney’s motion to withdraw and request for court appointed counsel
was not a written notice of appeal.30 Well we don’t have that in this
case. In this case the Appellant herself without counsel tried to appeal
her case the only way she knew how and that was through her. And
most importantly in Jones, this Court said “The language of the motion
and affidavit makes clear the appellant’s desire to appeal.”31 Therefor
I’m at a loss of how in Jones the appellant’s affidavit was evidence of a
desire to appeal but this Appellant’s request for APPELLATE counsel
was not.
29Roberts at 665 30 Maj. Op 8 31 Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) Conclusion and Prayer
The Court should GRANT this petition permit the parties to fully
brief the issue, ultimately REVERSE this cause and REMAND the case
to the court of appeals.
Respectfully submitted,
MITCHELL LEGAL SERVICES PLLC 211 S Rusk St Weatherford, Texas 76086 Phone: (817) 594-1088 Fax (817) 585 4778 Richard@richardmitchelllaw.com
_/s/Richard Mitchell______________ Richard Mitchell TX Bar No. 24047319 ATTORNEY FOR APPELLANT
Certificate of Service
On the 13 day of February, 2015, a copy of the foregoing document was served upon opposing counsel.
__/s/Richard Mitchell____________ Richard Mitchell Certificate of Compliance
I hereby certify that this document contains 1627 words in 14pt Times New Roman font.
___/S/ Richard Mitchell COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00576-CR
PATRICIA ELIZABETH HARKCOM APPELLANT
THE STATE OF TEXAS STATE
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR12165
OPINION
Appellant Patricia Elizabeth Harkcom attempts to appeal her state-jail-
felony conviction and twenty-four month sentence for possessing less than a
gram of methamphetamine. 1 Because appellant did not timely file a notice of
1 See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a)–(b) (West 2010). appeal or a motion for an extension of time to file the notice of appeal, we must
dismiss the appeal. 2
Background Facts
A grand jury indicted appellant for possessing less than a gram of
methamphetamine. Appellant retained counsel. At a jury trial, she pled not
guilty. On October 2, 2012, the parties presented evidence and arguments on
appellant’s guilt and punishment to the jury. The jury found appellant guilty and
assessed her punishment at twenty-four months’ confinement (the maximum for
a state jail felony) and a $2,250 fine (less than the maximum). 3 The trial court
sentenced appellant in accordance with the jury’s verdicts.
After the trial court sentenced appellant on October 2, on the same day, it
certified her right to appeal. Appellant and her trial counsel signed the
certification, which recited that appellant had been informed of her rights
concerning an appeal.
The trial court signed and filed its judgment of conviction on October 31,
2012. That day, appellant, acting pro se, filed an application for appointment of
2 This case was originally submitted on September 17, 2013. On June 10, 2014, the court, on its own motion, ordered the appeal to be resubmitted on July 1, 2014; assigned this case to a new panel; and assigned the undersigned to author the opinion. 3 See Tex. Penal Code Ann. § 12.35(a) (West Supp. 2014).
2 counsel and a declaration of her inability to employ counsel. 4 The application
stated, “I have been advised of my right to representation by counsel in the trial
of the charge pending against me. I certify that I am without means to employ
counsel of my own choosing and I hereby request the court to appoint counsel
for me.” [Emphasis added.] The application did not express appellant’s desire to
appeal. The trial court granted the application and appointed counsel. On its
order, the judge handwrote “ON APPEAL” to the end of typed words stating
“ORDER APPOINTING COUNSEL.”
On November 8, 2012, appellant, through newly-appointed counsel, filed
several documents, including designations of matters for inclusion in the
appellate record, a notice of appeal, and a combined motion for new trial and
motion in arrest of judgment. The notice of appeal stated that appellant had
already sought an appeal through her request for counsel. The motion for new
trial/motion in arrest of judgment, which was untimely filed, 5 alleged that the jury’s
verdict was contrary to the law and the evidence, that a new trial was warranted
in the interests of justice, and that appellant had not received effective assistance
from her trial counsel.
The trial court set a December 2012 hearing on appellant’s combined
posttrial motions. At the hearing, appellant focused her presentation of evidence
4 The record does not contain a motion or order permitting the withdrawal of appellant’s trial counsel. 5 See Tex. R. App. P. 21.4(a), 22.3.
3 on alleged ineffectiveness of her trial counsel. Specifically, she appeared to
contend that her trial counsel, who was still representing her on other charges,
was ineffective for not calling two witnesses and for failing to attempt to negotiate
a favorable plea agreement. The trial court denied the combined motions on
December 3, 2012.
Jurisdiction
A notice of appeal that complies with the requirements of the rules of
appellate procedure is essential to vest this court with jurisdiction. See Tex. R.
App. P. 25.2(b); Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014);
Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). When a notice of
appeal is not timely filed, we must dismiss the appeal for lack of jurisdiction.
Castillo, 369 S.W.3d at 198; Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim.
App. 1996). Only the court of criminal appeals may grant an out-of-time appeal.
See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(a) (West Supp. 2014); Olivo, 918
S.W.2d at 525 n.8; Wade v. State, No. 02-14-00004-CR, 2014 WL 1999308, at
*1 (Tex. App.—Fort Worth May 15, 2014, no pet.) (mem. op., not designated for
publication).
When a defendant has not filed a timely motion for new trial, the defendant
must file a notice of appeal within thirty days after the day the trial court imposed
its sentence in open court. Tex. R. App. P. 26.2(a)(1). Thus, because the trial
court sentenced appellant on October 2, 2012 and she did not timely file a motion
for new trial, her notice of appeal was due by November 1, 2012. See Tex. R.
4 App. P. 4.1(a), 26.2(a)(1). The only document that appellant filed between her
date of sentencing and November 1, 2012 was her application for appointment of
counsel. And although appellant filed a notice of appeal in the trial court within
fifteen days after the November 1, 2012 deadline, she did not, as required by rule
of appellate procedure 26.3, file a motion for extension of time in this court during
that same time period. 6 See Tex. R. App. P. 26.3(b); Castillo, 369 S.W.3d at
201; Olivo, 918 S.W.2d at 523 (“When a notice of appeal, but no motion for
extension of time, is filed within the fifteen-day period, the court of appeals lacks
jurisdiction to dispose of the purported appeal in any manner other than by
dismissing it for lack of jurisdiction.”).
In responding to our jurisdictional inquiries, appellant contends only that
the application for appointment of counsel qualifies as a timely notice of appeal;
she does not contend that rule 26.3 allows for an extension of time to file the
notice of appeal under the circumstances of this case. Several intermediate
appellate courts have examined, under various circumstances, whether an
6 Moreover, we did not receive a copy of the notice of appeal until December 2012. We sent a letter to appellant’s counsel in January 2013 to express our concern that we lack jurisdiction over the appeal. Appellant responded to our letter that same month, contending that her application for appointment of counsel qualified as a timely notice of appeal. We informed appellant in February 2013 that we would continue the appeal, and we eventually received briefs on the merits, in which appellant raised one issue alleging ineffective assistance of her trial counsel. In June 2014, by order, we resubmitted this appeal and assigned it to the current panel. Thereafter, we again sent appellant a letter expressing our concern that we lack jurisdiction.
5 application for appointment of counsel, or a similar document, may qualify as a
notice of appeal.
For example, in Clark v. State, the Texarkana court held that a
postconviction application for a court-appointed attorney, standing alone, did not
qualify as a notice of appeal. 287 S.W.3d 355, 356 (Tex. App.—Texarkana
2009, no pet.). The court distinguished one of its prior cases, in which it had held
that a notice of appeal had been filed when a postconviction request for
appointed counsel was joined with a request for a copy of the record and with a
district clerk’s written acknowledgement that the defendant had given oral notice
of intent to appeal. See id. (citing Massey v. State, 759 S.W.2d 18, 19 (Tex.
App.—Texarkana 1988, no pet.)); see also Baez v. State, 235 S.W.3d 839, 840–
41 (Tex. App.—Texarkana 2007, pet. ref’d) (concluding that a postconviction
motion to withdraw as counsel, which included language expressing the
defendant’s desire to appeal, was not a notice of appeal). 7
7 As explained in Baez, if courts deem language in such a motion as constituting a notice of appeal,
practically any language contained within any type of document that indicate[s] that [a defendant is] considering filing an appeal would be sufficient to serve as a notice of appeal. . . . [T]o do so would be tantamount of dispensing with the necessity of filing any such notice. Without direction from the Texas Court of Criminal Appeals, [courts should] not saddle [themselves] with the added responsibility of exploring every nook and cranny of a record—even in unlikely places—to seek out language that might be stretched to conceivably serve as a “notice of appeal.”
235 S.W.3d at 841.
6 Likewise, the San Antonio court of appeals has held that a combined
pauper’s oath and request for appellate counsel, standing alone, does not qualify
as a notice of appeal. See Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—
San Antonio 1996, no pet.); see also Roberts v. State, 270 S.W.3d 662, 665
(Tex. App.—San Antonio 2008, no pet.) (op. on reh’g) (following Rivera and
holding that a statement of inability to afford counsel was insufficient to serve as
a notice of appeal, even when construed liberally).
Under similar facts, other intermediate courts, including our own, have
reached decisions in accordance with the conclusions in Clark and Rivera. See,
e.g., Currie v. State, No. 09-06-00225-CR, 2006 WL 2506419, at *1 (Tex. App.—
Beaumont Aug. 30, 2006, no pet.) (mem. op., not designated for publication)
(concluding that a pauper’s oath and order appointing counsel on appeal were
insufficient to serve as a notice of appeal and noting that the court of criminal
appeals has held the same); Alejandro v. State, No. 14-06-00539-CR, 2006 WL
2074819, at *1 (Tex. App.—Houston [14th Dist.] July 27, 2006, pet. ref’d) (mem.
op., not designated for publication) (declining to consider a pauper’s oath and a
designation of record on appeal as a timely notice of appeal); Jarrels v. State,
No. 01-01-00721-CR, 2001 WL 1301636, at *1 (Tex. App.—Houston [1st Dist.]
Oct. 25, 2001, no pet.) (not designated for publication) (refusing to consider a
“request for the appointment of appellate counsel as the functional equivalent of
7 a notice of appeal”); 8 Rodriguez-Banda v. State, No. 04-96-00762-CR, 1997 WL
136517, at *1 (Tex. App.—San Antonio Mar. 26, 1997, no pet.) (not designated
for publication) (“[N]either an affidavit of indigency nor a request for appointment
of appellate counsel can serve as a notice of appeal . . . .”); Cooper v. State, 917
S.W.2d 474, 477 (Tex. App.—Fort Worth 1996, pet. ref’d) (“We find that the order
appointing counsel . . . does not act as a substitute for a timely filed notice of
appeal.”); Williford v. State, 909 S.W.2d 604, 605 (Tex. App.—Austin 1995, no
pet.).
The court of criminal appeals has also indicated that documents similar to
appellant’s application for appointment of counsel do not perfect an appeal. For
example, in Jones v. State, although the defendant (through his trial counsel) had
filed a postconviction request for appointed appellate counsel within thirty days of
sentencing, the court stated that appellant had not filed a “written notice of
appeal” and instead granted an out-of-time appeal. 98 S.W.3d 700, 702–04
(Tex. Crim. App. 2003). Similarly, fifteen years earlier, that court concluded that
although a defendant had filed a pauper’s oath and request for counsel on the
day he was sentenced, he had not perfected an appeal. See Shute v. State, 744
S.W.2d 96, 97 (Tex. Crim. App. 1988) (affirming a court of appeals’s dismissal of
8 The Jarrels court noted that on the same day that Jarrels had filed the request for appointment of counsel, he had also filed a motion for new trial. 2001 WL 1301636, at *1. As the court explained, “[a]t that time, [Jarrels] did not know whether his motion for new trial would be granted, or whether he would appeal the judgment.” Id.
8 an appeal for want of jurisdiction); see also id. at 100 (Teague, J., dissenting)
(attaching, as an appendix, a pauper’s oath and request for counsel along with
the trial court’s order appointing counsel “ON APPEAL”).
We recognize that a notice of appeal is sufficient when it shows a
defendant’s desire to appeal. See Tex. R. App. P. 25.2(c)(2); Gonzales v. State,
421 S.W.3d 674, 675 (Tex. Crim. App. 2014). But appellant’s application for
counsel did not necessarily show her desire to appeal; instead, it showed only
her desire for the appointment of counsel, from which an appeal, a successful or
unsuccessful motion for new trial, a successful or unsuccessful motion in arrest
of judgment, 9 or perhaps nothing (after consultation with counsel and counsel’s
review of the trial court’s proceedings) may follow. Contrary to appellant’s
contention in oral argument, there may be reasons for requesting appointment of
counsel after sentence has been pronounced other than immediately bringing an
appeal.
Also, we cannot conclude that the trial court’s handwritten reference to an
appeal on the order granting appellant’s application is determinative. This
reference does not necessarily reflect the trial court’s understanding of
appellant’s present intent to appeal; it may, instead, reflect the court’s
acknowledgement that appellant would need counsel if she later decided to
9 In the event a defendant prevails in such a motion, an appeal is obviously unnecessary.
9 Finally, we recognize that in recent years, the court of criminal appeals has
explained that we should liberally construe rules related to the perfection of an
appeal. See Few v. State, 230 S.W.3d 184, 190 (Tex. Crim. App. 2007).
Nonetheless, the court’s cases do not dispense with the requirement of a bona
fide notice of appeal. See id. at 189–90 (noting that the rules “retain the
requirement of notice of appeal” but holding that an unquestioned notice of
appeal was sufficient to appeal the defendant’s conviction although the
defendant filed the notice of appeal under a wrong cause number); see also
Taylor v. State, 424 S.W.3d 39, 41, 44–46 (Tex. Crim. App. 2014) (concluding
that an unquestioned notice of appeal was sufficient to invoke jurisdiction
although it was mistakenly sent to a court of appeals and later forwarded to a trial
court); Gonzales, 421 S.W.3d at 674 (holding that an unquestioned notice of
appeal in one cause number was sufficient to bring appeals in three related
cases). Despite liberal construction of the rules, the court of criminal appeals has
not dispensed with them altogether; it still dismisses appeals when there is no
timely notice of appeal. See Castillo, 369 S.W.3d at 202–03; Shute, 744 S.W.2d
at 97.
For all of these reasons, following the rationale in the cases above, we
cannot conclude that appellant’s application for appointment of counsel qualifies
as a timely notice of appeal. See Tex. R. App. P. 25.2(c)(2), 26.2(a)(1).
Because the record does not contain a timely notice of appeal or a timely motion
for extension of time to file a notice of appeal, we dismiss the appeal for want of
10 jurisdiction. See Tex. R. App. P. 25.2(b), 26.2(a)(1), 26.3(b), 43.2(f); Taylor, 424
S.W.3d at 43; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
/s/ Terrie Livingston
TERRIE LIVINGSTON CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
WALKER, J., filed a dissenting opinion.
PUBLISH
DELIVERED: October 2, 2014
11 COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY TRIAL COURT NO. CR12165
DISSENTING OPINION
I respectfully dissent. Under the narrow facts presented here, I would hold
that Appellant timely invoked the jurisdiction of this court over her appeal.
The pertinent facts are:
·October 2, 2012—Appellant was sentenced in open court, starting the thirty day timetable for filing a motion for new trial or a notice of appeal. See Tex. R. App. 21.4(a), 26.2(a). ·October 31, 2012—the trial court signed its judgment of conviction in Appellant’s case.
·October 31, 2012—Appellant filed a one-page pro se form application for appointment of counsel that contains a form order at the bottom for the trial court to grant or deny the application.
·October 31, 2012—the trial court granted Appellant’s pro se application for appointment of counsel and appointed appellate counsel.1
·November 1, 2012—Appellate counsel was notified that he was appointed to represent Appellant on appeal.
·November 8, 2012—Appellate counsel filed a motion for new trial explaining that “[t]his motion, has not been filed within the 30 day period,” that he was notified of his appointment to represent Appellant on November 1, 2012, and that the motion for new trial therefore “could not have been filed in the 30 day period.”
·November 8, 2012—Appellate counsel filed a notice of appeal. ·December 3, 2012—the trial court conducted a hearing on Appellant’s motion for new trial.
·December 3, 2012—the trial court signed an order denying Appellant’s motion for new trial.
Appellant had until November 1, 2012, to file her notice of appeal (or a
motion for new trial), and the only document she filed with the trial court by that
1 The trial court marked up the form, writing the word “Appeal” across the top of the application, crossing through the word “denying” in the title of the order, and handwriting in “on appeal,” so that the title of the order at the bottom of the form reads “ORDER APPOINTING/DENYING COUNSEL ON APPEAL.” The order appointed counsel for Appellant on appeal and the order was also stamped filed in the trial court on October 31, 2012.
2 deadline was her application for appointment of counsel and a declaration of her
inability to employ counsel. The majority holds that Appellant’s application for
appointment of counsel was insufficient to constitute a notice of appeal; I do not
dispute that in most cases, an application for appointment of counsel will not
indicate a desire to appeal sufficient to satisfy the notice of appeal requirement.
See Tex. R. App. P. 25.2(c)(2) (providing that a notice of appeal is sufficient if it
shows the party’s desire to appeal from the judgment).
Here, however, the trial court did not enter a written judgment for twenty-
nine days after sentencing Appellant in open court. One day before the thirty-day
deadline to file a notice of appeal (or motion for new trial), the trial court entered
its written judgment. On that same day, Appellant filed her application for
appointment of counsel and a declaration of her inability to employ counsel. The
trial court wrote in large black marker on the form application and order the words
“Appeal” and “ON APPEAL.” Appellant had not filed a motion for new trial or
motion in arrest of judgment prior to requesting appointment of counsel on
appeal, and considering that the deadline for filing such motions was the
following day, what “desire” could have been expressed by her request for
appointed counsel on appeal other than a desire to appeal the judgment signed
that day? Id.; see also Tex. R. App. P. 21.4(a), 22.3; cf. Jarrels v. State, No. 01-
01-00721-CR, 2001 WL 1301636, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25,
2001, no pet.) (not designated for publication) (noting, in rejecting appellant’s
argument that request for appointment of appellate counsel constituted notice of
3 appeal, that appellant filed request on same day as motion for new trial and bill of
exceptions and that, at that time, appellant did not know whether his motion for
new trial would be granted or whether he would appeal the judgment).
The majority points to several cases from our sister courts holding that an
application for appointment of counsel does not qualify as a notice of appeal.
See Majority Op. @ 6–8. But in none of those cases was the judgment signed
the day before the deadline to file a notice of appeal, and in none of those cases
did the defendant request and the trial court grant appointed counsel for
“APPEAL” the day before the deadline to file a notice of appeal. Cf. Clark v.
State, 287 S.W.3d 355, 356 (Tex. App.—Texarkana 2009, no pet.); Jarrels, 2001
WL 1301636, at *1; Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San
Antonio 1996, no pet.); Cooper v. State, 917 S.W.2d 474, 477 (Tex. App.—Fort
Worth 1996, pet. ref’d) (“We find that the order appointing counsel, under these
facts, does not act as a substitute for a timely filed notice of appeal.”) (emphasis
added).
I recognize that the time period for filing a notice of appeal begins from the
day that sentence is imposed, not from the date of the written judgment, see Tex.
R. App. P. 26.2(a), but I also recognize that a defendant’s notice of appeal must
show a “desire to appeal from the judgment,” Tex. R. App. P. 25.2(c)(2)
(emphasis added); see Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (West Supp.
2014) (“A judgment is the written declaration of the court signed by the trial judge
4 and entered of record . . . .”).2 I further recognize that we are to apply the
perfection-of-appeal rules “reasonably, yet liberally” so that the right of appeal is
not lost by elevating form over substance. Few v. State, 230 S.W.3d 184, 189
(Tex. Crim. App. 2007). Based on the unique facts here, where the written
judgment was entered one day prior to the thirty-day deadline to appeal, where
Appellant filed her application for appointed counsel that same day, and where
the trial court twice indicated on that application that her request and the court’s
order was for “APPEAL,” and liberally construing the perfection-of-appeals rules,
I would hold that Appellant’s application for appointment of counsel sufficiently
showed her desire to appeal from the trial court’s judgment. See Tex. R. App. P.
25.2(c)(2). Consequently, because she timely filed that application, I would not
dismiss the appeal for want of jurisdiction.
Because the majority holds otherwise, I respectfully dissent.
/s/ Sue Walker SUE WALKER JUSTICE
2 Thus, how could Appellant express a desire to appeal from the judgment until after it was entered?