Kenneth Giddens v. State

• Court: Court of Appeals of Texas
• Decided: October 22, 2008
• Docket: 06-08-00196-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00196-CR ______________________________

KENNETH GIDDENS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court No. 04532

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION

We have received an appeal from Kenneth Giddens in connection with the denial of his

application for writ of habeas corpus filed pursuant to Article 11.072, Section 2 of the Texas Code

of Criminal Procedure. See TEX . CODE CRIM . PROC. ANN . art. 11.072, § 2 (Vernon 2005). Giddens

was convicted of criminal mischief and sentenced to two years in a state-jail facility and placed on

community supervision for five years. The record reflects that the trial court entered an order

denying the application as frivolous, as authorized by Article 11.072, Section 7(a). See TEX . CODE

CRIM . PROC. ANN . art. 11.072, § 7(a) (Vernon 2005).

Under Article 11.072, Section 8, if the court denies an application, the movant may appeal

from that ruling to the court of appeals. TEX . CODE CRIM . PROC. ANN . art. 11.072, § 8 (Vernon

2005).

The trial court's ruling was signed on June 2, 2008. The notice of appeal was filed on

August 4, 2008, and on its face is thus untimely. See TEX . R. APP . P. 26.2(a)(1). The notice of

appeal states that it is late because counsel did not receive a copy of the signed order until July 30,

2008. See TEX . CODE CRIM . PROC. ANN . art. 11.072, § 7(b) (Vernon 2005) (requiring clerk to

immediately, by certified mail with return receipt requested, send a copy of the order to the parties).

Even assuming that this is correct, our jurisdiction over an appeal is circumscribed by statute

and rule, and we are not permitted to engage in actions that will enlarge that jurisdiction. Courts of

appeals may not employ Rule 2 of the Texas Rules of Appellate Procedure to suspend appellate time

2 limits. Garza v. State, 896 S.W.2d 192 (Tex. Crim. App. 1995); see TEX . R. APP . P. 2. Without a

timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108

(Tex. Crim. App. 1993); see Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998).

We have provided counsel with an opportunity to explain how we might nonetheless be able

to exercise jurisdiction over this appeal, and counsel has suggested that we abate the case for

hearings under TEX . R. APP . P. 4.2 and TEX . R. CIV . P. 306a.

In support of that argument, counsel suggests that although Article 11.07 writs have been

held to be criminal proceedings, see Aranda v. District Clerk, 207 S.W.3d 785 (Tex. Crim. App.

2006), the court has not held that an 11.072 writ is criminal; thus, we have the option of treating it

as a civil proceeding and applying the civil procedural rules.1 In further support, counsel correctly

points out that the appellate timetables typically begin upon the pronouncing of sentence in open

court. Thus, a defendant has actual notice. In proceedings such as this, where the only ruling is

written, the act of a district clerk in sending notice becomes critical to the exercise of any appellate

remedy.

Although the State has conceded that the district clerk failed to provide the notice required

by the statute, we find that we cannot agree that this is a civil proceeding. Thus, the possible

extended timetable provided by Rule 306a of the Texas Rules of Civil Procedure cannot apply, and

as noted above, we have been instructed in detail by the Texas Court of Criminal Appeals that we

1 TEX . CODE CRIM . PROC. ANN . art 11.07 (Vernon Supp. 2008), art. 11.072 (Vernon 2005).

3 may in no circumstances utilize the rules to expand our jurisdiction by lengthening the time available

to seek an appeal. See TEX . R. CIV . P. 306a. It thus appears that, in the same way as in a normal

criminal appeal, Giddens's remedy will be to seek an order granting an out-of-time appeal from the

Texas Court of Criminal Appeals.

We have no option but to dismiss the appeal for want of jurisdiction.

Bailey C. Moseley Justice

Date Submitted: October 21, 2008 Date Decided: October 22, 2008

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