Travis Wayne Newman v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 30, 2023
• Docket: 10-22-00042-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00042-CV

TRAVIS WAYNE NEWMAN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. CV21-075

DISSENT

The Court goes to a result without adequate justification or authority.1 Based on

everything in the opinion, there are at least two proper paths to take. But the path chosen

is not one of them.

We do not have before us a motion to dismiss the appeal.

1 I have other issues with the Court’s opinion, as written, but will not discuss those issues in this dissent. One path to dismiss a civil appeal without a motion to dismiss would be because

an issue requiring dismissal has been fully briefed. Since we do not have a brief from the

appellee responding to the appellant’s amended brief, a fully briefed issue requiring

dismissal cannot be the basis of this dismissal. Another path would be to dismiss the

appeal because of some specific shortcoming regarding the appeal. That is not what the

Court purports to be doing here either; and really, it cannot be what the Court is doing

since the parties have not been notified that: the Court is questioning our jurisdiction,

see TEX. R. APP. P. 42.3 (a); the appellant has failed to timely prosecute the appeal in some

way, see id. 42.3(b); or the appellant has failed to comply with a requirement of the rules,

a court order, or a notice from the clerk, see id. 42.3(c). It appears the Court is simply

taking the appellant’s allegation of error—specifically, that what was filed in the trial

court was a motion for new trial rather than a notice of appeal—concluding the appellant

does not want to pursue the appeal, and dismissing the appeal. That particular result

would occur in response to a motion to dismiss, see TEX. R. APP. P. 42.1; but a dismissal is

not what the appellant seeks. The appellant argues that the trial court erred and there

are unresolved issues in the trial court.

I believe a fair reading of the issue presented in the appellant’s amended brief is

that the trial court’s judgment is not final and the appeal should result in a remand to the

trial court for further proceedings. Thus, the notice of appeal would be premature—

which is something that conservative litigants have been advised to do when they are

uncertain if the judgment is final. And if we were to so hold, the appeal would be

dismissed for want of jurisdiction and remanded to the trial court for further proceedings.

Newman v. State Page 2 Thus, ultimately, the appellate clock would be reset on the date of the final judgment. As

it is, based on the Court’s opinion and judgment, the appeal is dismissed, the trial court’s

judgment remains in place, and the motion for rehearing is overruled by operation of

law. In that scenario, the appellant gets no review of what happened in the trial court.

Rather than dismissing the appeal, I would await the time with patience until the

appellee has filed a brief in response to the appellant’s amended brief and then decide

the proper path to a disposition. Because the Court prematurely terminates this appeal

without a proper foundation, I respectfully dissent.

TOM GRAY Chief Justice

Dissent delivered and filed August 30, 2023

Newman v. State Page 3