In Re Johnathan Cooper v. the State of Texas

Opinion

In the

Court of Appeals

Second Appellate District of Texas at Fort Worth

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No. 02-24-00131-CV

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IN RE JOHNATHAN COOPER, Relator

Original Proceeding

297th District Court of Tarrant County, Texas Trial Court No. 1031532D

Before the En Banc Court

Per Curiam Memorandum Opinion and Order on Second Motion for En Banc Reconsideration

MEMORANDUM OPINION AND ORDER ON SECOND MOTION FOR EN BANC RECONSIDERATION

The court has before it Relator’s May 24, 2024 “Objection to Opinion Issued May 16, 2024.” Procedurally, we will treat Relator’s “Objection” as a second motion for en banc reconsideration. See Tex. R. App. P. 49.6.

In our May 16, 2024 opinion, we declined to apply the mailbox rule to Relator’s April 26, 2024 motion for en banc reconsideration because its postmark was late. See Tex. R. App. P. 9.2(b); Tex. R. Civ. P. 5 (focusing on postmark). Based on our plenary jurisdiction, we nevertheless reviewed Relator’s April 26, 2024 motion for en banc reconsideration on its merits and denied it. See Tex. R. App. P. 19.1. We did not refuse to consider Relator’s motion based on any noncompliance with the mailbox rule.

In Relator’s “Objection,” he asserts that we should have applied the mailbox rule because—although his correspondence was not postmarked until April 22, 2024—he gave it to prison officials to mail on April 15, 2024. Relator contends that the date that he gave his correspondence to prison officials to mail is the dispositive date for purposes of the mailbox rule. See Castillo v. State, 369 S.W.3d 196, 199 n.14 (Tex. Crim. App. 2012); Vafaiyan v. State, No. 13-18-00352-CV, 2019 WL 3820418, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 15, 2019, no pet.) (mem. op., not designated for publication). Under Castillo, we agree that Relator’s April 26, 2024 motion for en banc consideration was timely under the mailbox rule. See Tex. R. App.

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P. 9.2(b); Tex. R. Civ. P. 5; Castillo, 369 S.W.3d at 199 n.14. Applying Castillo and the mailbox rule resolves any reservations that we had about asserting jurisdiction over the merits of Relator’s motion.

As for Relator’s “Objection,” we treat it as a second motion for en banc reconsideration and deny it. See Tex. R. App. P. 49.6.

Per Curiam

Delivered: June 13, 2024