State v. Jerome Paul Marroquin

• Court: Court of Appeals of Texas
• Decided: June 15, 2007
• Docket: 07-07-00115-CR
• Status: Published

Opinion

NO. 07-07-0114-CR

07-07-0115-CR

07-07-0116-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 15, 2007

______________________________

THE STATE OF TEXAS, APPELLANT

V.

JEROME PAUL MARROQUIN, APPELLEE _________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,084-E, 54,102-E, 54,103-E; HONORABLE RICHARD DAMBOLD, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ON ABATEMENT AND REMAND

The State of Texas appeals the sentencing of appellee, Jerome Paul Marroquin. We abate and remand these cases to the trial court for further proceedings.

On March 22, 2007, appellee pled guilty to evading arrest with a motor vehicle, injury to a child, and accident involving personal injury or death. The trial court found that the evidence substantiated appellee's guilt, accepted the plea, found him guilty, and sentenced appellee. The trial court considered the charges of evading arrest with a motor vehicle and injury to a child as state jail offenses and sentenced appellee to two years confinement in a state jail facility but suspended the sentence and placed appellee on community supervision for three years. The trial court considered the charge of accident involving personal injury or death a third degree felony and sentenced appellee to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice but suspended the sentence and placed appellee on community supervision for eight years. The State filed a notice of appeal. The court reporter filed the reporter's record on May 21, 2007. However, the district clerk requested an extension to the time to file the clerk's record; in the motion requesting extension, the district clerk has notified this court that appellee has not been appointed counsel on appeal.

Consequently, we abate this appeal and remand the matter to the trial court for further proceedings. Upon remand, the trial court shall determine, if appellee is not represented by counsel, whether appellee is indigent and is entitled to appointed counsel. Should the trial court determine that appellee's circumstances warrant the appointment of counsel, the trial court is directed to provide this court the name, address, telephone number, and state bar number of said counsel. The trial court may hold hearings and enter orders as the court deems necessary regarding the aforementioned issues and shall cause its findings and conclusions and any orders entered to be included in a supplemental clerk's record. A supplemental reporter's record of any hearing held shall be transcribed.

Finally, the trial court shall ensure that the entire clerk's record and the supplemental reporter's record be filed with the Clerk of this Court by Monday, July 16, 2007.

Per Curiam

Do not publish.

ISTRICT COURT OF POTTER COUNTY;

NO. 93,924-B; HONORABLE JOHN BOARD, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Michael Scott, an inmate proceeding pro se, appeals a final judgment dismissing his suit against Appellees. The judgment was signed on April 16, 2007, and the notice of appeal was filed on July 18, 2007. Because the notice of appeal was untimely, we dismiss for want of jurisdiction.

          This Court is obligated to determine, sua sponte, its jurisdiction to entertain an appeal. Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.–Amarillo 1994, writ denied), citing New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990). A timely filed notice of appeal invokes this Court’s jurisdiction. See Tex. R. App. P. 25.1 & 26.1. See also Garza v. Hibernia Nat. Bank, 227, S.W.3d 233 (Tex.App.–Houston [1st Dist.] 2007, no pet.). Except in circumstances not relevant to this appeal, the notice of appeal must be filed within 30 days after the judgment is signed, unless any party timely files a motion for new trial. See Tex. R. App. P. 26.1. A motion for new trial must be filed within 30 days after the judgment is signed. See Tex. R. Civ. P. 329b.

Chronology

          According to the clerk’s record filed on August 14, 2007, the following dates are relevant to the determination of this Court’s jurisdiction:

April 16, 2007          Judgment is signed.

May 16, 2007          Motion for new trial is due. Notice of appeal is due, unless any party timely files a motion for new trial.

May 18, 2007          Postmark on envelope containing motion for new trial.

May 21, 2007          Motion for new trial is filed with District Clerk.

July 16, 2007            Notice of appeal due, if any party timely files a motion for new trial.

July 18, 2007           Notice of appeal filed with District Clerk.

Procedural Background

          On August 1, 2007, based upon the record before this Court at that time, it appearing as though Appellant’s notice of appeal was not timely filed, this Court directed Appellant to show cause why his appeal should not be dismissed for want of jurisdiction due to an untimely notice of appeal. Appellant responded, taking the position that he timely filed a motion for new trial on May 16, 2007, pursuant to Warner v. Glass, 135 S.W.3d 681, 682 (Tex. 2004). Appellant opined that the time in which to file his notice of appeal was thereby extended to ninety days after the judgment was signed. See Tex. R. App. P. 26.1(a)(1). Assuming, arguendo, that Appellant timely filed a motion for new trial, the notice of appeal, albeit chronologically late, could have been considered as being timely filed if it too had been timely placed in the hands of prison authorities for mailing. Furthermore, again assuming a timely filed motion for new trial, the notice of appeal was filed within the fifteen-day extension period provided by Rule 26.3 of the Texas Rules of Appellate Procedure. Because this Court did not have before it information concerning when Appellant may have placed either his motion for new trial or his notice of appeal with prison authorities, and because this Court did not have a reasonable explanation for granting a motion to extend time to file a notice of appeal, this Court abated the appeal and remanded the cause to the trial court to utilize whatever means necessary to determine those facts.

          On December 13, 2007, the trial court conducted a hearing to determine the fact issues posed by this Court. All parties were notified of the hearing. The trial court made arrangements with the Texas Department of Criminal Justice - Institutional Division to have Appellant available by phone in the Institution’s law library. Appellant chose not to avail himself of that opportunity. The trial court received and reviewed numerous pages of mail log records from prison authorities which were provided by the Texas Attorney General.

Trial Court’s Findings

          Following that hearing, the trial court filed Findings of Fact and Conclusions of Law. In its findings, the trial court determined that Appellant has numerous suits pending in Potter County and that the mail log entries do not indicate to which particular suit a mailing pertains. By Finding of Fact No. 13, the trial court found that Appellant mailed an item to the trial court clerk, Caroline Woodburn, on May 8, 2007, and by Finding of Fact No. 15, found that the next mail log entry to Caroline Woodburn occurred on May 17, 2007. Finding of Fact No. 16, found: “Mr. Scott’s Motion for New Trial was untimely filed at the earliest on May 17, 2007.” Therefore, we conclude that Appellant’s motion for new trial was placed in the hands of prison authorities on May 17, 2007. As such, Appellant’s motion for new trial was not timely filed. Because there was no timely filed motion for new trial, Appellant only had thirty days from the date judgment was signed in which to file his notice of appeal. Tex. R. App. P. 26.1. The trial court correctly concluded that Scott’s motion for new trial and notice of appeal were both untimely.

Appellant’s Objection to Finding of Fact No. 16

          On January 7, 2008, Appellant filed an objection to Finding of Fact No. 16. Appellant insists that he placed the motion for mailing with prison authorities on May 16, 2007. He explains that the motion was removed by the mailroom clerk and then processed through the mail system and not recorded until May 17, 2007. He requests a second hearing to determine the mailroom procedure for handling of inmate legal mail. We overrule his objection and deny his request for a second hearing.

          An inmate has the constitutional right to access the courts for the purpose of presenting complaints. Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). In Warner, the Court adopted an interpretation of the word “file” in the Inmate Litigation Act in a manner that provides an inmate access to the courts given the “unique problem that arises when one party is forced to rely on his opposing party to ensure pleadings are timely filed.” 135 S.W.3d at 685. Appellant was given an opportunity to access the courts and did not avail himself of that right. He now seeks a second bite at the apple to which he is not entitled. Appellant was afforded the opportunity at the first hearing to enlighten the trial court on the prison mailroom procedures, but chose not to. Having failed to timely apprise the trial court of his position, Appellant waived any objection that he might have to the trial court’s findings of fact.

          Accordingly, we dismiss this appeal for want of jurisdiction.

                                                                           Patrick A. Pirtle

                                                                                 Justice