James Franklin Bowen v. State

• Court: Court of Appeals of Texas
• Decided: March 3, 2020
• Docket: 05-19-01532-CR
• Status: Published

Opinion

DISMISS and Opinion Filed March 3, 2020

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01530-CR No. 05-19-01531-CR No. 05-19-01532-CR No. 05-19-01533-CR JAMES FRANKLIN BOWEN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F19-40935-M, F19-40937-M, F19-40936-M & F19-40939-M

MEMORANDUM OPINION Before Chief Justice Burns, Justice Myers, and Justice Carlyle Opinion by Chief Justice Burns James Franklin Bowen appeals his convictions for unauthorized use of a

motor vehicle, possession of less than one gram of methamphetamine, evading

arrest, and aggravated robbery. Appellant entered open pleas of guilty to all four

offenses and pleaded true to the enhancement paragraphs alleged in each case. On

November 5, 2019, the trial court found appellant guilty and found the enhancement

paragraphs alleged in each offense true. The trial court then assessed punishment at

ten years each for the unauthorized use and possession cases and forty-five years each for the evading arrest and aggravated robbery cases. The trial court certified

that appellant had the right to appeal each case because he had not entered into a

plea bargain agreement with the State.

On December 9, 2019, appellant filed his notices of appeal. We questioned

the timeliness of his appeals and requested jurisdictional letter briefs from appellant

and the State. Appellant did not respond; the State filed a letter brief and asserted

that we lacked jurisdiction over the appeals because the notices of appeal were not

timely filed. For the reason that follows, we agree with the State and dismiss these

appeals.

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). A document

received “within ten days after the filing deadline is considered timely filed if,” as

relevant here, “it was sent to the proper clerk by United States Postal Service or a

commercial delivery service.” See TEX. R. APP. P. 9.2(b)(1)(A) (emphasis added).

Courts have interpreted the “proper clerk” liberally to include “agents of the district

clerk” and the clerk of the correct court of appeals. See Taylor v. State, 424 S.W.3d

39, 45‒46 (Tex. Crim. App. 2014); Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim.

App. 1992). Mailing a notice of appeal to one’s attorney or to the trial court judge

does not meet the requirements of the rule. Turner v. State, 529 S.W.3d 157, 159 –2– (Tex. App.—Texarkana 2017, no pet.) (holding prisoner mailbox rule did not apply

when appellant delivered envelope to prison authorities for forwarding to trial

judge); Rhodes v. State, 05-16-00921-CR, 2017 WL 3587101, at *2 (Tex. App.—

Dallas Aug. 21, 2017, no pet.) (mem. op., not designated for publication) (mailing

notice of appeal to third-party agent for redelivery to trial court clerk does not

comply with rule). In the absence of a timely filed notice of appeal, we must dismiss

the appeal for want of jurisdiction. See Castillo v. Sate, 369 S.W.3d 196, 198 (Tex.

Crim. App. 2012).

Here, the trial court found appellant guilty and pronounced sentence in each

of appellant’s cases on November 5, 2019. Because appellant did not file a motion

for new trial, his notices of appeal were due on December 5, 2019. See TEX. R. APP.

P. 26.2(a)(1). Appellant’s notices of appeal, dated November 24, 2019 and post-

marked November 25, 2019, were mailed to the trial court judge. They were then

forwarded to the district clerk who file stamped them on December 9, 2019. Because

the notices were not sent to the proper clerk, appellant cannot avail himself of the

ten-day grace period provided by the mailbox rule. See id. 9.2(b); see also Turner,

529 S.W.3d at 159. As a result, appellant’s notices of appeal are untimely, and we

lack jurisdiction over these appeals. See Castillo, 369 S.W.3d at 202.

–3– We dismiss these appeals for want of jurisdiction. 1

/Robert D. Burns, III/ ROBERT D. BURNS, III Do Not Publish CHIEF JUSTICE TEX. R. APP. P. 47.2(b) 191530F.U05

1 Appellant may seek out-of-time appeals under article 11.07 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07. –4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-40935-M. No. 05-19-01530-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Carlyle THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered March 3, 2020.

–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-40937-M. No. 05-19-01531-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Carlyle THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-40936-M. No. 05-19-01532-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Carlyle THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-40939-M. No. 05-19-01533-CR V. Opinion delivered by Chief Justice Burns. Justices Myers and Carlyle THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

–8–