Miller v. State

Full title: GODFREY VANN MILLER, Appellant, v. THE STATE OF TEXAS

Court: Court of Criminal Appeals of Texas, En banc

Date published: Oct 26, 2005

No. PD-1675-03 (Tex. Crim. App. Oct. 26, 2005)

Opinion

No. PD-1675-03

Delivered: October 26, 2005. DO NOT PUBLISH.

On Appellant's Petition for Discretionary Review from the Tenth Court of Appeals, Leon County.

PRICE, J., delivered the opinion of the Court, in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined. HOLCOMB, J., dissents. MEYERS, J., filed a concurring opinion. JOHNSON, J., filed a concurring opinion.

OPINION

PRICE, J.

We granted the appellant's petition for discretionary review to decide whether the court of appeals erred in concluding that the appellant's written notice of appeal had not been timely filed and therefore erred in dismissing the appellant's appeal without considering the merits of said appeal. Because the record does not show that the appellant timely filed his notice of appeal with the trial court clerk, we hold that the court of appeals did not err. We shall affirm. The appellant pled guilty to felony driving while intoxicated, and the trial court placed the appellant on five years' community supervision. The trial court later revoked the appellant's community supervision and imposed a sentence of four years' imprisonment on September 23, 2002. Because the appellant did not file a motion for new trial, his notice of appeal was due on October 23, 2002. The docket sheet in the clerk's record includes a notation by the trial court, dated September 23, 2002, which states, "Defendant gives notice of appeal. Bond set at $8,000.00." The record also reflects that the appellant's counsel served the State on the same date and that the State's attorney did not object to the granting of bond. The notice of appeal in the clerk's record, however, is file-stamped by the trial court clerk on November 25, 2002. The stamp contains blanks that were filled in by hand, indicating the date and signed by G. McCarty.¹ The document immediately preceding the notice of appeal in the clerk's record is the appellant's request for preparation of the reporter's record. The transmittal letter is dated November 21, 2002, and it is file-stamped on November 25, 2002, by G. McCarty. Nothing in the record reflects that written notice of appeal was ever filed with the trial court clerk on September 23, 2002. The clerk of the court of appeals sent a letter to the appellant's counsel on June 5, 2003, because the file stamp on the notice of appeal in the record indicated that it had been filed late. The letter informed counsel that the appeal was subject to dismissal for want of jurisdiction because the notice of appeal had been untimely filed. According to the court of appeals's opinion, counsel responded by letter June 12, 2003, stating

I have no explanation as to why the District Court Clerk's file shows a filing date of November 25, 2002 as opposed to September 23, 2002. However, I assure the court that such notice was indeed filed on September 23, 2002. This notice was filed at the time of sentencing, and the posting of an appeal bond. In fact I am confident Judge Ernst entered such notice on the docket sheet.²

Counsel referenced the certificate of service in the notice of appeal, which states that counsel served the State's attorney with a copy of notice on September 23, 2002. Counsel also attached an affidavit stating that "I now state under oath that written notice of appeal was filed in the 12th Judicial District Court on September 23, 2002." The certificate is silent regarding any date of filing with the trial court clerk. The court of appeals held that the appellant did not timely file a notice of appeal with the trial court clerk and dismissed the appeal for want of jurisdiction.³ Texas Rule of Appellate Procedure 25.2(c)(1) provides that a defendant perfects his appeal by notice of appeal, which must be given in writing and filed with the trial court clerk.⁴ The rule specifically requires that the notice of appeal be filed with the trial court clerk. In his petition for discretionary review, the appellant quotes an affidavit from the district clerk that he claims undermines the file-stamp date on the notice of appeal. This affidavit is not a part of the record on appeal and cannot be considered.⁵ The appellant claims in his brief that the trial court clerk did not timely file stamp the notice of appeal. The appellant argues that the court of appeals overlooked the fact that the docket sheet indicates that the trial judge and the State received the notice of appeal and that the trial judge set an appeal bond. He concludes that "It is beyond belief that counsel would be so cautious as to have a bond prepared the day before sentencing, prepare a cover letter to the District Attorney and somehow overlook a timely notice of appeal with the clerk." In support of his arguments, the appellant cites cases in which this Court has looked to docket sheets to corroborate certain facts.⁶ Although the docket sheet corroborates the appellant's claim that he gave his notice of appeal to the trial judge and that an appeal bond was set, it does not indicate that notice of appeal was filed with the trial court clerk. The appellant, in his petition and brief on discretionary review, does not argue that giving the notice of appeal to the trial judge is the same as giving it to the trial court clerk. The Court of Appeals noted in its opinion that the appellant seems to argue that he satisfied the requirements of Rule 25.2(c)(1) by giving written notice of appeal to the judge. It held that Rule 25.2(c)(1) does not permit a defendant to perfect appeal in this manner. Because this issue was not raised by the appellant in his petition for discretionary review, it is not before us. We reserve this question for another day. The record before us does not support the conclusion that the written notice of appeal was filed with the trial court clerk before the expiration of the time for filing a notice of appeal in this case. The file stamp on the notice of appeals and its proximity to the request for preparation of the record stamped on the same day indicate that the notice was not filed with the trial court clerk until November 25, after the expiration of the period for filing the notice. The record before us indicates that the notice of appeal was not timely filed, and the court of appeals did not err in dismissing the appeal for want of jurisdiction. The judgment of the court of appeals is affirmed.

1 The stamp indicates that Gloria McCarty is the clerk of the district court in Leon County.

2 Miller v. State, No. 10-03-00089-CR, slip op., at 2, 2003 Tex. App. LEXIS 6005 (Tex.App.-Waco, delivered July 9, 2003) (not designated for publication). Counsel's letter does not appear in the record, though excerpts are quoted in the court of appeals's opinion.

3 Id. slip op., at 3.

4 Tex.R.App.P. 25.2(c)(1).

5 This affidavit is not attached to the appellant's petition for discretionary review and does not appear elsewhere in the record. "It is a long standing principle that we cannot review contentions which depend upon factual assertions outside of the record." Janecka v. State, 937 S.W.2d 456, 476 (Tex.Crim.App. 1996).

6 See, e.g., Ex parte Lemay, 525 S.W.2d 1, 3 (Tex.Crim.App. 1975) (holding that docket sheet corroborating the defendant's testimony that counsel was appointed overcame recitations in the judgment); Ex parte Blaine, 472 S.W.2d 514, 515 (Tex.Crim.App. 1971) (holding that the defendant had been represented by counsel because the docket sheet showed that he had been).

MEYERS, J., filed a concurring opinion.

There is no other conclusion that the Court could have come to on this issue. Therefore, I join the majority opinion.

CONCURRING OPINION

JOHNSON, J., filed a concurring opinion.

I join the majority opinion because the Rules of Appellate Procedure requires the result reached in that opinion. However, the rule as currently written fails to recognize that sometimes what is supposed to be done in a particular way gets done, but in, perhaps, a more efficient way. In a number of counties, written notices of appeal are routinely given to the judge at the time of sentencing. The judge then records the notice on the docket sheet and hands the notice to the court clerk. The clerk receives the notice, stamps it with the proper date, and inserts it into the defendant's file. Trouble arises when the clerk, for whatever reason, puts the notice in the file without stamping it. No one disputes that appellant timely filed his notice of appeal with the trial judge. The docket sheet reflects that notice was filed at sentencing. Defense counsel has filed an affidavit that the notice was timely filed on the day of sentencing. The state does not deny that it received a copy of the notice on the day of sentencing, nor did it oppose appeal bond. The only problem is the clerk's time stamp. It is appellant's misfortune that written notice to the trial court is at this time not sufficient; his only means of remedy now is through writ of habeas corpus alleging ineffective assistance of counsel. This further complicates the problem, as it is likely that the attorney followed local custom in presenting the notice of appeal to the judge and should not be held to have been ineffective. It is my opinion that timely service of written notice on the trial court and acknowledgment of that notice on the docket sheet (as is conceded here) or timely filing with the court clerk should suffice.