Victoria Curl v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 22, 2025
• Docket: 03-25-00203-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00203-CR

Victoria Curl, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 24DCR89167, THE HONORABLE DEBBIE GARRETT, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Victoria Curl was convicted on February 6, 2025, of the following

felony offenses: one count of first-degree possession of a controlled substance with intent to

deliver, one count of first-degree possession of a controlled substance, and two counts of

second-degree possession of a controlled substance. See Tex. Health & Safety Code

§§ 481.115(d), .116(e), .1123(d). The trial court sentenced Curl to fifteen years’ confinement for

each offense and ordered that the sentences run concurrently. On March 14, 2025, Curl filed an

undated pro se notice of appeal, in which she stated that she had entered open guilty pleas to

preserve her right to appeal; had signed appeal paperwork on February 10th at the direction of

her former counsel; and had contacted pretrial services, who informed her that no appeal had

been filed in her case. The envelope in which Curl’s notice of appeal was mailed was postmarked

March 11, 2025, 1 and addressed to:

27th District Court Office P.O. Box 324 Belton, TX 76513

To perfect an appeal, a defendant must file 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 new trial—a written notice of appeal showing her desire to appeal. See

Tex. R. App. P. 25.2(b), (c), 26.2(a), (b). Because Curl did not file a motion for new trial, her

notice was therefore due by March 10, 2025. See id. R. 4.1(a). 2

Texas Rule of Appellate Procedure 9.2, known as the “mailbox rule,” provides in

relevant part:

A document received within ten days after the filing deadline is considered timely filed if:

(A) it was sent to the proper clerk 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.

1 The trial court appointed Curl appellate counsel on March 17, 2025. 2In criminal cases, unlike in civil cases, we cannot imply a motion for extension of time when a notice of appeal is filed within fifteen days of the deadline. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). 2 Tex. R. App. P. 9.2(b)(1). For the rule to apply, all three elements must be satisfied. Anderson

v. State, 625 S.W.3d 128, 132 (Tex. Crim. App. 2021).

Curl is not entitled to the mailbox rule because her notice was not sent to the trial

court clerk, the notice was not mailed in a properly addressed envelope, and the record contains

nothing from which we can conclude that the notice was deposited in the mail on or before

March 10, 2025. Id.; see Castillo v. State, 369 S.W.3d 196, 202 (Tex. Crim. App. 2012) (noting

that “one day is enough to deprive the appellate court of jurisdiction to consider appellant’s

appeal under the Texas Rules of Appellate Procedure”). In Anderson, the Court of Criminal

Appeals held that a notice of appeal mailed to the trial court—not the clerk or an agent of the

clerk—is not entitled to Rule 9.2(b)(1)’s protection. 3 625 S.W.3d at 132. The Court explained

its holding:

[T]he trial court is not an agent of the district clerk, and for good reason: judges are ethically prohibited from receiving ex parte communications from a party. Instead, it is the clerk that is responsible for maintaining records filed in the court. Tex. Gov’t Code § 51.303. Relevant to these proceedings, the clerk is also responsible for forwarding a copy of the notice of appeal to the appellate court and for transmitting the clerk’s record to the appellate court upon perfection of an appeal. See Tex. R. App. P. 25.2(e); 35.3(a). Therefore, if a notice of appeal is not filed with the proper clerk, the clerk cannot fulfill his or her duties. Therefore, Rule 9.2(b)’s requirement of mailing to the proper clerk is essential and ensures fairness in the judicial proceeding.

Anderson, 625 S.W.3d at 131–32.

Because Curl “did not comply with the plain, unambiguous mailbox rule,

[s]he did not invoke the jurisdiction of the appellate court.” Id. at 134; see Slaton v. State,

3 The Court in Anderson noted in dicta that “if mailing the document to the convicting court was not sufficient under Rule 9.2, then it also would not qualify under the common law ‘prisoner mailbox rule,’ assuming Appellant had raised such an argument.” Anderson v. State, 625 S.W.3d 128, 132 (Tex. Crim. App. 2021). 3 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (explaining that “[a] notice of appeal which

complies with the requirements of Tex. R. App. P. 26 is essential to vest the court of appeals

with jurisdiction” and that if appeal is not timely perfected, “a court of appeals does not obtain

jurisdiction to address the merits of the appeal” and “can take no action other than to dismiss

the appeal”).

Accordingly, we dismiss the appeal for want of jurisdiction. 4

__________________________________________ Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Kelly and Ellis

Dismissed for Want of Jurisdiction

Filed: April 22, 2025

Do Not Publish

4 The remedy for an untimely notice of appeal is to file an application for post-conviction writ of habeas corpus returnable to the Court of Criminal Appeals for consideration of an out-of-time appeal. Bell v. State, No. 03-24-00047-CR, 2024 WL 968884, at *1 n.1 (Tex. App.—Austin Mar. 7, 2024, no pet.) (mem. op., not designated for publication). 4