PD-0180-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS June 15, 2015 Transmitted 6/15/2015 12:00:00 AM Accepted 6/15/2015 7:52:34 AM ABEL ACOSTA PD-0180-15 CLERK
COURT OF CRIMINAL APPEALS OF TEXAS
PATRICIA ELIZABETH HARKCOM, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
APPELLANT’S BRIEF On Appeal From The Second Court of Appeals In No. 02-12-00576-CR Affirming the Judgment in CR12165 In the 355th District Court Hood County, Texas Honorable Ralph Walton, Presiding
MITCHELL LAW
RICHARD MITCHELL # 24047319 ATTORNEY 211 S Rusk St Weatherford, Texas 76086 817 594 1088 Fax 817 585 4778
ORAL ARGUMENT IS REQUESTED IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Patricia Elizabeth Harkcom Unknown
Trial Court
355th District Court Ralph Walton (Presiding) Hood County Courthouse 817 579 3233 1200 Pearl St Granbury Tx
Counsel:
Attorney for the Appellant (appeal): Richard Mitchell Attorney At Law Texas Bar No. 24047319 211 S Rusk St Weatherford, Texas 76086 (817) 594-1088 (817) 585-4778 fax
Attorney for the Appellant (trial): Andrew Ottaway Texas Bar No. 015342850 PO Box Granbury Tx 76048 (817) 573-7823
Attorneys for Appellee: Megan Chalifoux Hood County Courthouse 1200 Pearl Street Granbury, Texas 76048 (817) 579-3245
ii Table of Contents
Identities of Parties and Counsel .................................................... ii
Index of Authorities ........................................................................ iv
Statement Regarding Oral Argument ............................................. 1
Statement of the Case...................................................................... 1
Issue Presented ................................................................................ 3
Was the instrument the appellant filed with the trial court a bona fide attempt to invoke the appellate court’s jurisdiction as set forth in Tex. R. App. P. 25.2(c)(2) and in Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)?............. 3
Statement of Facts ........................................................................... 4
Summary of the Argument .............................................................. 7
Argument ......................................................................................... 8
Conclusion and Prayer for Relief................................................... 16
Certificate of Service...................................................................... 16
Certificate of Compliance………………………………………………17
iii Index of Authorities
Cases:
Court of Criminal Appeals
Bayless v State, 91 S.W.3d 801 (Tex. Crim. App. 2002) .................. 8
Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) .............. 9
Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)................ 8,11
Gonzales v State, 421 S.W.3d 674 (Tex. Crim. App. 2014.)... ...... 11
Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) .................. 15
Supreme Court of Texas
Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) ................................ 9
Verburgt v. Dorner, 959 S.W. 2d 615 (Tex. 1997)............................ 9
Courts of Appeals
Clark v. State, 287 S.W.3d 355 (Tex. App.—Texarkana 2009, no pet) ............................................................................................... 14
Hall v, State, 11-05-00222-CR (Tex. App.—Eastland 2006) (not designated for publication) ............................................................ 12
Lair v. State, 321 S.W.3d 158 (Tex. App.— Houston [1 st Dist] 2010)(not designated for publication).............................................. 9
Massey v. State, 759 S.W.2d 18 (Tex. App.—Texarkana 1988) .... 12
Palma v, State 76 S.W.3d 638 (Tex. App.—Corpus Christi 2002) 12
Rollins v. State 282 S.W.3d 741 (Tex. App.—Beaumont 2009) ...... 9
iv Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio 2008, no pet.)............................................................................................ 13
Soto v. State, 03-08-00099-CR (Tex. App.—Austin 2009) ............. 11
Statutes:
Tex R. App P. 25.2(c)(2) ................................................................... 8
v Statement Regarding Oral Argument
Harkcom requests oral argument upon the important issue
presented in this petition. The denial of the right to appeal her
conviction on the merits has serious constitutional implications for
other appellants throughout the State of Texas.
Statement of the Case
On 31 December 2011, a Texas trooper arrested Harkcom, a
passenger in a shared vehicle, for a felony offense.1. Harkcom was
convicted and sentenced by a jury on 2 October 2012 for possession of a
controlled substance—methamphetamine—under one gram.2 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.3
After her conviction, Harkcom remained in jail without access to
an attorney or legal materials. Described by her trial attorney as
“having some deficits,” Harkcom communicated her desire to appeal
1 R.R. 3-20 2 C.R.1:12 3 CR 1:21, Appellant’s trial counsel did not apply for an appeal bond.
1 through the only paperwork that was given to her from the Hood
County court system.4
Appellate counsel was appointed the next day by written order
and filed a motion for new trial and a notice of appeal on 8 November
2012.5 The trial court heard evidence on Harkcom’s ineffective trial
counsel claim but denied relief.
The court of appeals raised a concern about the timeliness of the
notice of appeal in February 2013 when it asked for an explanation for
the late filing.6 The appeal continued with briefing by both sides on the
ineffectiveness of Harkcom’s trial attorney.7
On 2 October 2014 the court of appeals found in a split decision
that Harkcom’s appeal should be dismissed for want of jurisdiction
because of the untimely notice of appeal by her attorney.
4 R.R. 4: 39, CR 1: 26 5 CR 1-28 6 Majority Opinion 5 7 ID
2 Issue Presented
Was the instrument the appellant filed with the trial court a bona fide attempt to invoke the appellate court’s jurisdiction as set forth in Tex. R. App. P. 25.2(c)(2) and in Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)?
3 Statement of the Facts
On 31 December 2011, a Texas trooper detained Julie Underhill
for an equipment violation on her company’s car.8. The trooper escorted
her to his patrol car to be interviewed. 9 He noticed her past arrests
and an old drug conviction, so he asked her for consent to search the
car.10 Ms. Underhill declined the trooper’s invitation to search her
vehicle. The trooper called for a K-9 to perform an open air search.11
While waiting, Ms. Underhill told the trooper that other employees
of the company she worked for used narcotics and had access to the
same vehicle.12 The trooper attempted to convince Underhill that if
there was something that the other employees used or possessed then
she shouldn’t have been riding around with it and she wouldn’t be in
trouble13 Ms. Underhill maintained that she didn’t know what was in
the vehicle and there were a number of other employees who drove it
on a daily basis.14
8 R.R. 3-20 9 R.R. 3-22. 10 R.R. 3-28. 11 R.R. 3-29. 12 R.R. 6, State’s Exhibit 2 11:00-15:30 13 Id. 14 Id.
4 At trial the trooper testified that Underhill had aged dramatically
which led him to believe that she was a user of illicit drugs.15 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.16 A
small quantity of what was purported to be methamphetamine was also
found behind the back seat of the vehicle.17
The appellant and her lap dog were passengers in the car while
Ms. Underhill was being investigated.18 Upon finding the drugs both
Underhill and Harkcom were arrested.19 Ms. Underhill was never
prosecuted nor did she testify at trial.20
Richard Trotter testified at the Motion for New Trial. Mr. Trotter
testified that he owned the vehicle that Ms. Underhill drove the day she
and Harkcom were arrested.21 He also testified that there were at least
nineteen of his employees who drove the vehicle on a daily basis.22
15 R.R. 3-56-57, R.R. 6, State’s Exhibit 2 34:00-35:00 16 R.R. 3-44 17 R.R. 3-44, 47 18 R.R. 3-22
19 R.R. 3-31
20 R.R. 4-20
21 R.R. 4-9 22 Id.
5 Finally, he testified that Harkcom did not drive the vehicle and was not
employed by him.23
23 Id. 6 Summary of the Argument
Is the statement “I want a lawyer to help me with my appeal” a
bona fide attempt to invoke an appellate court’s jurisdiction? Does this
statement put a trial court, a clerk, and the prosecution on notice that a
defendant wants to appeal an appealable order or judgment? Yes, a
liberal or conservative reading of this statement puts all parties on
notice the defendant wants to appeal her case.
Patricia Harkcom essentially did what is outlined above. The
difference though is that she had to make this request within the rules
and regulations of the Hood County system for indigent appointments
without the benefit of her trial lawyer who abandoned her at a crucial
post judgment time. She requested appellate counsel the only way she
knew how. Courts have hewed closely to the principle that appellate
courts should not dismiss an appeal for a procedural defect whenever
any arguable interpretation of the rules of appellate procedure would
preserve the appeal.
7 Issues Presented for Review
Was the instrument the appellant filed with the trial court a bona fide attempt to invoke the appellate court’s jurisdiction as set forth in Tex. R. App. P. 25.2(c)(2) and in Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)?
Argument
An appeal is perfected if the notice shows the party’s desire to
appeal from the judgment.24 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.”25
In this case an incarcerated, indigent, inexperienced pro se citizen
made a bona fide attempt to invoke the Second Court of Appeals’
jurisdiction but was turned away, because, for some it’s easier to elevate
form over substance.
This Court’s opinions from Bayless to Few and beyond have
continuously held that a person’s right to appeal should not depend
upon that person tracking through a trail of technicalities.26 In Few the
Court quotes Professor Dix, who suggests that the Court of Criminal
24Tex. R. App Pro 25.2(c)(2) 25Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007) 26 Bayless v State, 91 S.W.3d 801 (Tex. Crim. App. 2002)
8 Appeals has “…functionally embraced an approach to perfecting
appeals and notice of appeal closer to that of the Texas Supreme
Court.”27
This Court has not taken the next logical step as laid out in Hone,
where the Texas Supreme Court suggested that a court of appeals could
consider a notice of appeal filed two days late, but within the fifteen-day
period to extend the deadline under Rule 26.3 as an “implied motion for
extension of time to file a notice of appeal”.28 This Court should take
the final step at this time, as called for in Justice Gaultney’s dissent in
Rollins v. State, encouraged by Justice Sharps’ concurrence in Lair v
State and somewhat contemplated, although not squarely on point, by
Judges Alcala and Johnson their dissent in Castillo v. State. 29
If the Court is so inclined then the attorney filed notice of appeal30
would suffice as an implied motion for extension of time. This case
would be an excellent beginning point in merging the civil and criminal
practices in the administration of justice. This Court should not be
27 Few at 189 28 Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex. 2003) See Vernurgt v. Dorner, 959 S.W. 2d 615 (Tex. 1997) 29 Rollins v. State 282 S.W.3d 741, 743 (Tex. App.—Beaumont 2009), Lair v. State,
321 S.W.3d 158, 160 (Tex. App.— Houston [1 st Dist] 2010)(not designated for publication) Castillo v. State, 369 S.W.3d 196, 203-205 (Tex. Crim. App. 2012) 30 C.R.34
9 swayed by the predictable complaints that this change would
undermine the finality of judgments, that the implied extension would
indefinitely extend the time for the filing of appeals or any number of
disasters that could be dreamt up. Justice for the criminal defendant is
important and this judicially implied extension would not create the
imagined problems that the dissenting judges in Vernurgt.31 On the
contrary, because in Hone there was an opportunity to dissent as to the
continued use of the implied extension and no one did. However, the
Court does not need to take that small step because the appellant’s
filing is sufficient to invoke the court of appeals’ jurisdiction.
A timely filed request for counsel to appeal a case can be
construed as a notice of appeal. The Second Court cites cases that were
decided prior to Few, which suggests that a request for an attorney or
an order for an appellate attorney is not a notice of appeal. Appellant
believes if these cases were decided in light of the Few opinion they
would be different.
Appellant understands that Few is not squarely on point. In that
case the defendant filed a document titled notice of appeal which
31 Vernurgt at 617 10 contained erroneous cause numbers. However, this Court re-
emphasized that the lower appellate courts should “not dismiss an
appeal for a procedural defect whenever any arguable interpretation of
the Rules of Appellate Procedure would preserve the appeal.”32 This
Court continued “…we have instructed the courts of appeals to construe
the Rules of Appellate Procedure reasonably, yet liberally, so that the
right to appeal is not lost by imposing requirements not absolutely
necessary to effect the purpose of a rule.”33
Finally and most importantly “Delayed or defective notices of
appeal are unlikely to contribute significantly to the difficulty of
preparing the appellate record or otherwise impede the appellate
process.”34
Opinions from courts of appeals have shown how courts have
interpreted Few. In an unpublished case from the Third District held
that a timely filed notice that had the wrong name and the wrong
signature line but the correct cause number perfected the defendant’s
appeal.35
32 Few at 189 33 Id 34 Id at 190 (emphasis added) 35 Soto v. State, 03-08-00099-CR (Tex. App.—Austin 2009) 11 In Gonzales, this Court reversed the Waco Court of Appeals for
dismissing the appeal of a defendant who omitted three out of the four
cause numbers that he filed a notice on.36 Thus in its opinion this Court
recognized the Waco Court would have been upheld in the past. In light
of new rules and often cited case law a defendant’s right to appeal
“should not depend upon tracking through a trail of technicalities.”37
There have been holdings where appellate courts have construed
differing documents as notices of appeal. In Hall, the Eleventh Court of
Appeals held that a request for appellate counsel demonstrated the
defendant’s desire to appeal his conviction.38 Likewise, in Palma a
defendant’s letter inquiring about an “appeal lawyer” was deemed
sufficient.39 A written request for a copy of the record and for
appointment of appellate counsel is sufficient to serve as notice.40 In
this case the only reason Ms. Harkcom sent the documents to the trial
court was to appeal her case.
36 Gonzales v State, 421 S.W.3d 674 (Tex. Crim. App. 2014) 37 Id at 675 38 Hall v, State, 11-05-00222-CR (Tex. App.—Eastland 2006) (not designated for
publication) 39 Palma v, State 76 S.W.3d 638, 641 (Tex. App.—Corpus Christi 2002)
40 Massey v. State, 759 S.W.2d 18, 19 (Tex. App.—Texarkana 1988)
12 As correctly pointed out by Justice Walker in her dissent a notice
of appeal must express a desire to appeal “from the judgment.” In this
case that judgment was signed by the trial court and delivered to
Harkcom twenty-nine days after sentence was pronounced. The
majority’s rigid interpretation of the rules creates a situation that is
Kafka-esque in its application, involving a time table whereby a
defendant must express the desire to appeal from a judgment that does
not yet exist.
After her conviction and sentence, Ms. Harkcom sat in the Hood
county jail for 29 days before she was presented with the judgment of
conviction and associated paperwork.41 One can safely presume she sat
there without the guidance of an attorney at this critical stage.42
During that time she sent jail provided paperwork to the trial court
requesting an attorney to appeal her case.43 The trial court knew she
wanted to appeal her case and wrote APPEAL in big block letters, then
filed it with the Hood County District Clerk.44 It appointed an attorney
41 C.R. 19 42 Majority Op. 3 43 C.R. 26 44 Id 13 that same day the Appellant made a bona fide attempt to invoke the
appellate court’s jurisdiction when she filed her application.
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 under these facts as held by the Second Court of
Appeals and other cases which they cited.45 Firstly, these cases were
decided during a time where technicalities doomed a defendant’s right
to appeal. Secondly, the cases are distinguishable.
The Second Court cited Roberts v. State, where the facts are
similar to the present case.46 In Roberts the San Antonio Court stated
that the title of the document filed was “Statement of Inability to Afford
Counsel” which in its words, “The word appeal is never mentioned in
the document.”47
In this case Harkcom filed two documents requesting appellate
counsel with the second document having the same exact cause number
that described the offense with which she had a right to appeal.48 In
addition the order appointing counsel was annotated with the words
45 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.). 46 Roberts at 665
47 Id
48 C.R 26-27
14 “Appeal” and “On Appeal” by the trial court.49 The trial court clearly
knew why Harkcom was asking for an attorney on the same cause
number she was convicted under. The document she filed showed her
attempt to appeal her case.
In Jones this Court held that the language of the motion to
withdraw and the affidavit makes clear the appellant’s desire to
appeal.50 In this case Harkcom’s desire is also clear. In addition, the
trial court understood what her request was and filed it. The trial court
did not need to liberally construe her request because it knew exactly
what she was asking for. By asking for an attorney to appeal her case
she sent up a safety flare for all of world to see: that she wanted to
appeal her case.
This Court understands how important the right to appeal is in
any case where defendants can spend decades in prison, and may do so
whether they are factually innocent, had their constitutional rights
infringed or just had an ineffective attorney. This Court should hold
that the right to appeal is so important to the orderly administration of
justice that a newly convicted defendant like Harkcom—alone,
49 C.R. 27 50 Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) 15 uneducated, and without counsel—can invoke her right when her desire
is clear but the documents are not.
Conclusion and Prayer
The Court should, REVERSE the holding of the Second Court of
Appeals and REMAND for determination of the case on the merits.
Respectfully submitted,
MITCHELL LAW 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 15 day of June, 2015, a copy of the foregoing document will be served upon opposing (Local and State )counsel.
__/s/Richard Mitchell____________ Richard Mitchell
Certificate of Compliance 16 I hereby certify that this document contains 2815 words in 14pt Century Schoolbook font.
___/S/ Richard Mitchell