Opinion
03-23-00751-CR
06-20-2024
Alexis Luciano, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE COUNTY COURT AT LAW NO. 9 OF TRAVIS COUNTY NO. C-1-CR-23-200063, THE HONORABLE KIM WILLIAMS, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Smith and Theofanis
MEMORANDUM OPINION
Rosa Lopez Theofanis, Justice
On September 19, 2023, appellant Alexis Luciano was convicted of the misdemeanor offense of indecent exposure and sentenced to four days' confinement in the Travis County Jail. See Tex. Penal Code § 21.08(a). On October 26, 2023, Luciano filed a pro senotice of appeal in the trial court. The envelope in which his notice was mailed was addressed:
The record indicates that Luciano, who is indigent, represented himself at trial. See Faretta v. California, 422 U.S. 806, 836 (1975) (recognizing constitutional right to self-representation). When asked by his appointed standby counsel whether he wished to appeal his conviction, Luciano stated that he did not. Thus, counsel "did not take any additional steps to get him situated with an appellate attorney."
County Court at Law 9 P.O. Box 1748 Austin, TX 78767
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 his desire to appeal. See Tex. R. App. P. 25.2(b), (c), 26.2(a), (b). Because Luciano did not file a motion for new trial, his notice was therefore due on October 19, 2023.
In 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).
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.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).
Luciano is not entitled to the mailbox rule because his notice was not sent to the trial court clerk nor mailed in a properly addressed envelope. Id. 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. Id. The Court explained its holding:
Although the record in this case does not suggest that Luciano was incarcerated when he filed his notice of appeal, 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).
[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 Luciano "did not comply with the plain, unambiguous mailbox rule, he did not invoke the jurisdiction of the appellate court." Id. at 134; see Slaton v. State, 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.
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).
Dismissed for Want of Jurisdiction