Opinion
No. 08-19-00247-CR
07-24-2020
CHAUNCEY DEANDRE REED, Appellant, v. THE STATE OF TEXAS, Appellee.
Appeal from the 168th District Court of El Paso County, Texas (TC# 20150D00451) MEMORANDUM OPINION
The appeal of this cause, No. 08-19-00247-CR, came before the Court on our own motion for determination of whether the case should be consolidated with Cause No. 08-19-00283-CR.
On October 7, 2019, Chauncey Deandre Reed filed a notice of appeal from the 168th District Court in trial court cause number 20150D00451. This Court docketed that appeal under this cause as No. 08-19-00247-CR. Reed's notice of appeal described that he had been found guilty by the jury, on January 17, 2018, of the felony offense of aggravated sexual assault of a child, that punishment of the trial was concluded on October 7, 2019, and that a timely filed motion for new trial had been filed on that same day. However, based on the information that was then available, this Court notified the parties the next day that there appeared to be no appealable order and/or judgment then entered in trial court cause number 20150D00451. The letter gave notice of our intent to dismiss the appeal for want of jurisdiction, within 10 days from the date of the notice, unless any party established grounds for continuing the appeal. On October 11, 2019, Reed filed a first amended notice of appeal from the same trial court cause number, which included additional information, but again made no reference to a final judgment. Rather, the first amended notice described that a sentencing hearing was then scheduled for November 5, 2019, or a few weeks hence. Like the prior notice, the amended notice was docketed in Cause No. 08-19-00247-CR. Despite receiving an amended notice, we received no response to our letter inquiring about information to establish the jurisdiction of the appeal which we had docketed as Cause No. 08-19-00247-CR.
Rather, on November 6, 2019, Reed again filed a notice of appeal with the 168th District Court in trial court cause number 20150D00451, which made no reference to being an amended or supplemental notice, but described that Reed had been found guilty by the jury, on November 1, 2019, of the felony offense of sexual abuse of a child continuous with victim under fourteen, that the sentencing phase was concluded on November 6, 2019, and a motion for new trial was filed that same day. This Court docketed that notice of appeal as a new case under Cause No. 08-19-00283-CR. Subsequently, on March 5, 2020, we received the clerk's record which contained a Judgment of Conviction by Jury filed in trial court cause number 20150D00451, entered on November 14, 2019, reflecting that sentence was imposed on November 6, 2019. Yet, after determining that the clerk's record otherwise lacked a certification of the defendant's right of appeal, we issued an order requiring the trial court to prepare and file such certification as required by TEX.R.APP.P. 25.2(a)(2) and 25.2(d), and for the clerk to prepare a supplemental record. On May 5, 2020, the trial court clerk filed a supplemental record containing the trial court's certification of defendant's right to appeal in trial court cause number 20150D00451, which was dated March 30, 2020.
After reviewing the record of Cause Nos. 08-19-00247-CR and 08-19-00283-CR together, it appears to the Court that the notices of appeal filed in both appellate cases were timely filed, effective when filed, and pertain to the same trial court judgment. Even though the notice of appeal filed on October 7, 2019 was filed prematurely, before sentence was imposed on November 6, 2019, the notice was effective and deemed filed on the same day, but after, sentence was imposed pursuant to Texas Rule of Appellate Procedure 27.1(b). See TEX.R.APP.P. 27.1(b). Additionally, the notice of appeal filed on November 6, 2019 was timely filed, albeit unnecessarily, as it was filed the same day as the sentencing date. See TEX.R.APP.P. 26.2(a); Lerma v. Forbes, 144 S.W.3d 18, 20 (Tex. App.—El Paso 2004, no pet.). Thus, either notice of appeal is effective to invoke our jurisdiction over trial court cause number 20150D00451.
As such, we conclude that there is good cause to consolidate these two appellate cases into one appellate cause number on the Court's own motion. Since filing activity has properly proceeded in Cause No. 08-19-00283-CR, we find that granting a consolidation order that (1) transfers the documents in Cause No. 08-19-00247-CR to Cause No. 08-19-00283-CR, and (2) thereafter dismisses Cause No. 08-19-00247-CR due to consolidation, is proper.
Therefore, it is ORDERED that Cause No. 08-19-00247-CR be consolidated with Cause No. 08-19-00283-CR. On our own motion, we thus have entered this consolidation order in cause number 08-19-00247-CR. We direct the Clerk of the Court to remove all documents from Cause No. 08-19-00247-CR and to immediately refile them in Cause No. 08-19-00283-CR.
It is further ORDERED that all future pleadings be filed in and bear only Cause No. 08-19-00283-CR.
Finally, by virtue of this consolidation, the Court determines that it is unnecessary to retain Cause No. 08-19-00247-CR, since all matters that were originally docketed to be heard in that case have been re-docketed and will now be heard in Cause No. 08-19-00283-CR. As such, this Court ORDERS that Cause No. 08-19-00247-CR be dismissed due to consolidation. See Jones v. Powers, No. 08-19-00196-CV, 2019 WL 3491936, at *1 (Tex. App.—El Paso Aug. 1, 2019, no pet.) (mem. op.). The Court's mandate will issue immediately.
GINA M. PALAFOX, Justice July 24, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)