Jones, Rory

Opinion

ILli'tH /47T/Y I67W( CASE NOS. PD-1976-14, PD-1677-14 & PD-1678-14

ORIGINAL

IN RE § IN THE

RORY JONES, § COURT OF COUFTT OF CRIMINAL APPEALS TDCJ-CID#01914710 § CRIMINAL APPEALS MAR 18 2015

PETITIONER JONES MOTION FOR RECONSIDERATION OF DISMISSAL OF PDR'S AS BEING UNTIMELY Abel Acosta, Clerk

TO THE HONORABLE JUDGES OF T6HE COURT OF CRIMINAL APPEALS:

Comes now, your Petitioner, Rory Jones, proceeding in pro se in the above-styled and numbered

causes and files this, his Motion for Reconsideration of his PDR's being Dismissed as being untimely FILED IN

filed and in support thereof, would show the Court as follows: COURT OF CRIMINAL APPEALS L MAR 20 2015 Abel Acosta, Clerk

Procedural History

Petitioner was convicted of the felony offenses of aggravated robbery, aggravated assault and

aggravated kidnapping in the 211th Judicial District Court of Denton County in the State ofTexas v. Rory Jones in case numbers: F-2014-0079-C, F-2014-0080-C and F-2014-0081-C on February 07, 2014. A

direct appeal was taken by Petitioner to the Second Court of Appeals in Jones v. State, Case Nos. 02-14- 00068-CR, 02-14-00069-CR & 02-14-00070-CR, who affirmed the judgment and sentences in an

unpublished opinion dated November 20, 2014. On December 31, 2014, the Court granted Petitioner's Motion for Extension of Time to file his pro se PDR, giving him up to and including February 20, 2015,

in which to file his pro se PDR in all three cases. Petitioner placed all three of his PDR's in the prison

mail box for the authorities to forward to the Court on February 19, 2015, as demonstrated by the

associated dates written above his signature and certificates of service of his PDR. On March 04, the

Clerk of the Court issued a notice to Petitioner that his three PDR's had been dismissed as being untimely

filed. This proceeding followed. See Appendix A.

H.

Motion for Reconsideration

Petitioner relies upon two procedural rules of law adopted by the Texas Supreme Courtto remedy

the alleged deficient filing. First, Petitioner would direct the attention of the Courtto the Texas Rules of

Appellate Procedure, Rule 4, infra:

A. Rule 4. Time and Notice Provisions

4.1. Computing Time

(a) In General. The day of an act, event, or default after which a designated period beginsto run is not

included when computing a period prescribed or allowed by these rules, by court order, or by statute.

The last day of the period is included, but if thatday is a Saturday, Sunday, or legal holiday, the period

extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.

9.2. Filing

(b) Filing by Mail.

(1) Timely Filing. A document received within ten days afterthe filing deadline is considered

timely filed if:

(A) it was sent to the properclerk by United States Postal Service or a commercial

delivery service;

(B) it was placed in an envelope or wrapper properly addressed and stamped; and

(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for

filing.

Petitioner submits that he signed his three PDR's on February 19, 2015 and placed them in the

prison mail for them to forward to the Courts Clerk for filing. For reasons unknown to Petitioner the

package mailed was not post-marked before the last day of filing, which would have been February 20,

2015. Thereafter, the clerk of the Court dismissed all three PDR's as being untimely on March 04, 2015.

Once an inmate places his pleading(s) in the prison mail box for forwarding to the clerk of a court for

filing he has no control on how his pleadings are actually handled and/orforwarded for filing.

B. Federal Mail box Rule Extended to State Filings

In Campbell v. State, PD-1081-09, this Court held in relevant part:

We granted appellant's sole ground for review, which he filed pro se: "The court of appeals erred in holding that the mailbox rule filing and received by clerk after deposited within ten days applied to indigent criminal defendants acting pro se." An amended briefhas been filed by "Counsel for Appellant." In that brief, appellant asserts that the court of appeals "erred in holding that the ten-day late-filing requirement, incorporated into TEX.R. CIV. P. 5 and TEX.R.APP. P. 9.2, applies to an indigent, incarcerated litigant acting pro se." He asks, "Should pro se, incarcerated litigants be exempted from enforcement of the ten-day filing provisoembedded within TEX.R. CIV. P. 5 and TEX.R.APP. P. 9.2(b)(1)?"

In Texas, the mailbox rule is encompassed by TEX.R.APP. P. 9.2(b) and TEX.R. CIV. P. 5. Rule 9.2(b) provides that, if filed by mail, a document received within ten days after the filing deadline is considered timely filed if: 1) it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail; 2) it was placed in an envelope or wrapper properly addressed and stamped; and 3) it was deposited in the mail on or before the last day for filing. Rule 5 also provides that additional time to file is permitted, including specific provisions that if any properly addressed and stamped document in an envelope or wrapper sent to the proper clerk by first-class United States mail and deposited in the mail on or before the last day for filing, and received by the clerk not more than ten days afterthe lastdayfor filing, shall be filed by the clerk and be deemed filed in time.

The Supreme Court also pointed out that, "[u]nlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped Tiled' or to establish the date on which the court received the notice." Houston v. Lack, 487 U.S. at 271, 108 S.Ct. 2379. The Court also noted that pro se prisoners are forced to entrust their appeals to the vagaries of the mail, while other litigants who use that method can "place the notice directly into the hands of the United States Postal Service (or a private express carrier); and they can follow its progress by calling the court to determine whether the notice has been received and stamped, knowing that if the mail goes awry they can personally deliver notice at the last moment or that their monitoring will provide them with evidence to demonstrate either excusable neglect or that the notice was not stamped on the day the court received it." Id. It also notes that "[p]ro se prisoners cannot take any of these precautions; nor, by definition, do they have lawyers who can take these precautions for them."

The Supreme Court recognizes that "[w]orse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay." Id. "No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped Tiled' on time." Id. (Emphasis in original.) "And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikelyto have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received." Id. It also recognizes that "[ujnskilled in law, unaided by counsel, and unable to leave the prison, [the pro se prisoner's] control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice." Id. at 271-72, 108 S.Ct. 2379.

Like our sister courts, we decline to penalize a pro se inmate who timely deliversa document to the prison mailbox. We find the analysis of the United States Supreme Court in Houston v. Lack to be compelling. We see no reason for this Court to hold contrarily to both the United States and Texas Supreme Courts. Therefore, we shall apply those considerations to an analogous situation, such as the present case.

We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the courtclerk. Accordingly, we reverse the judgment of the court of appeals and remand this cause to that court for further proceedings consistent with this opinion. Id.

Campbell v. State, 320 SW3d 338.

Like the litigant in Campbell, Petitioner has had to rely on prison authorities receiving his pleadings after they are placed into the prison mailbox to forward in a timely manner his pleadings to this Court for its consideration.

CONCLUSION

Accordingly, Petitioner would respectfully request that this Honorable Court extend the mail

box rule to his previous filing of his three PDR's, which, as demonstrated in the certificate of service

of those pleadings, show he signed and placed his three PDR petitions in the prison mail box on

February 19, 2015, the day before the deadline for same to be filed;

CERTIFICATE OF SERVICE

I, Rory K. Jones, TDCJ-CID#01914710, Petitioner, pro se, herein certifies that a true and

correct copy of the above and foregoing Petition for Discretionary Review was sent to the

Denton County District Attorney, and The State Prosecuting Attorney, by placing same, in the

prison mail box, first-class, postage paid, on this the 19 day of February, 2015.

SIGNED onthis the 13th day of March 2015.

Respectfully submitted,

Huntsville, Texas 77349

CERTIFICATE OF SERVICE

I, Rory K. Jones, TDCJ-CID#01914710, Petitioner, pro se, herein certifies that a true and

correct copy of the above and foregoing Motion for Reconsideration was sent to the Denton

County District Attorney, and The State Prosecuting Attorney, by placing same, in the prison

mail box, first-class, postage paid, onthis the 13th day of March, 2015..

APPENDIX

A

FIT F COPY

OFFICIAL NOTICEFROM COURTOF CRIMINAL APPEALS OF TEXAS rll"E'

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711 3/4/2015 COA No. 02-14-00068-CR JONES, RORY Tr. Ct. No! F-2014-0079-C PD-1676-14 On this day, the Appellant's Pro Se petition for discretionary review has been dismissed as untimely filed. ~_fi- .};':

Abel Acosta, Clerk

RORY JONES TDC# 1914710 WYNNE UNIT 810 FM 2821 HUNTSVILLE, TX 77349

FII F COPY

OFFICIAL NOTICEFROMCOURTOF CRIMINALAPPEALSOF TEXAS rUjE wv^x P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711 3/4/2015 COA No. 02-14-00069-CR JONES, RORY Tr. Ct. No. F-2014-0080-C PD-1677-14 On this day, the Appellant's Pro Se petition for discretionary review has been dismissed as untimely filed.

Abel Acosta, Clerk

RORY JONES TDC# 1914710 WYNNE UNIT 810 FM 2821 HUNTSVILLE, TX 77349

Fir p copy

OFFICIAL NOTICE FROM COURTOF CRIMINALAPPEALS OF TEXAS rlLvC WAJI P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 787II 3/4/2015 COA No. 02-14-00070-CR JONES, RORY Tr. Gt. No! F-2014-0081 -C PD-1678-14 On this day, the Appellant's Pro Se petition for discretionary review has been dismissed as untimely filed. ..f:^ ~x;::"

's Abel Acosta, Clerk RORY JONES TDC# 1914710 WYNNE UNIT 810 FM 2821 HUNTSVILLE, TX 77349