Opinion
No. 05-16-00921-CR
08-21-2017
JARRE JERONCE RHODES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court Dallas County, Texas
Trial Court Cause No. F15-51952-U
MEMORANDUM OPINION
Before Chief Justice Wright and Justices Bridges and Evans
Opinion by Justice Bridges
Jarre Jeronce Rhodes appeals his conviction in a jury trial of robbery. The State has filed a motion to dismiss the appeal on the ground appellant's notice of appeal was untimely. We agree and thus dismiss the appeal.
The record shows the trial court pronounced sentence on June 17, 2016. No motion for new trial was filed. Appellant drafted a letter, addressed to his counsel, and bearing the date July 18, 2016. The letter states that it is his "written notice to file an appeal. . . ." The letter indicates appellant has sent copies to his family and to "the courts." The letter instructs trial counsel to file an appeal on appellant's behalf. The envelope in which the letter was transmitted indicates that it was sent from the prison unit where appellant is incarcerated and was addressed to appellant's trial counsel. The envelope bears a postmark of July 25, 2016. Upon receiving the letter, trial counsel wrote "See Attached" on a form notice of appeal and transmitted the form and appellant's letter to the trial court clerk. The form notice of appeal bears a file stamp from the trial court clerk showing it was filed on July 28, 2016.
Separately, appellant mailed a second notice of appeal bearing a handwritten date and handwritten verification indicating that it was prepared on July 28, 2016. Appellant's second notice of appeal was mailed in an envelope addressed to the Clerk of the Court bearing a postmark of July 29, 2016. The Clerk of the Court received appellant's second notice of appeal on August 2, 2016. On August 3, 2016, the Clerk of the Court received an electronically filed version of the first notice of appeal.
The first numeral in the handwritten dates is not recognizable as any Roman numeral. We note, however, that identical symbols appear twice on the envelope in the zip code for the Court's address in spots where there should be a "2" and within the letter itself in the cause number and appellant's inmate number in spaces where there should be a "2." We conclude the handwritten notice of appeal was drafted on July 28th.
On July 7, 2017, after appellant had filed his brief, the State filed a motion to dismiss the appeal for want of jurisdiction. The State contends that appellant's notices of appeal were all untimely under the rules and the Court lacks jurisdiction to proceed with a review of the merits. The Court requested a letter brief in response to the State's allegations.
On July 31, 2017, appellant filed his response, contending his July 18, 2016 first notice of appeal was timely under the "mailbox rule." Appellant contends, because he mailed his pro se notice of appeal on July 18, 2016 and it was filed on July 28, 2016, it is timely filed. Alternatively, appellant contends he should be granted an extension of time to file his notice of appeal because he has a reasonable explanation for why his notice of appeal was untimely and his second notice of appeal should be characterized as a motion for extension.
A timely perfected notice of appeal is required to invoke this Court's jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). In the absence of a timely perfected notice of appeal, the Court can take no action other than to dismiss the appeal. Id. A defendant perfects his appeal by filing 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 or her desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a). A notice of appeal is considered filed when it is physically delivered to, and received by, the clerk of the trial court. Ex parte Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). Alternatively, a notice of appeal may be filed under the "mailbox rule" if it is placed in an envelope addressed to the "proper clerk," deposited in the mail or delivered to a commercial delivery service before the time for filing expires, and is actually received by the clerk within ten days after the filing deadline. See TEX. R. APP. P. 9.2(b). Because inmates must depend on prison authorities to mail their correspondence, pro se inmates are entitled to rely upon the "prisoner mailbox rule" which provides that for purposes of compliance with the mailbox rule, pro se inmates are deemed to have filed their pleadings "at the time they are delivered to prison authorities for forwarding to the court clerk." Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010).
Applying these rules to the current case, because appellant did not file a motion for new trial, his notice of appeal was due no later than Monday, July 18, 2016. See TEX. R. APP. P. 4.1, 26.2(a)(1). It was not physically delivered to, and received by, the trial court clerk until July 28, 2016. Thus, it was not timely delivered or received.
Nor would appellant qualify for the "mailbox rule" or its more specific application as the "prisoner mailbox rule." Although appellant's notice was timely delivered to prison authorities for mailing, he addressed the document to his attorney rather than to the trial court clerk. To qualify for the mailbox rule, the document must be "sent to the proper clerk" of the court. See TEX. R. APP. P. 9.2(b); Campbell, 320 S.W.3d at 344. The courts have interpreted the "proper clerk" liberally to include related clerk's offices. See Taylor v. State, 424 S.W.3d 39, 44 (Tex. Crim. App. 2014) (mailbox rule applied where defendant sent notice of appeal to appellate court clerk rather than trial court clerk because appellate court clerk required to forward notice of appeal to trial court clerk under rules of appellate procedure); Moore v. State, 840 S.W.2d 439, 440-41 (Tex. Crim. App. 1992) (finding notice of appeal timely under mailbox rule when addressed to "Bond forfeiture Clerk" without specifying whether notice was intended for county clerk or district clerk which had offices on same floor of courthouse because receiving agent in courthouse would have routed it to proper clerk). This Court is unaware of any authority, however, that would extend the mailbox rule requirement of mailing the document to the "proper clerk' to include mailing a notice of appeal to a third-party agent for redelivery to the trial court clerk.
Because appellant did not file his notice of appeal by July 18, 2016, and because his action in mailing it to his attorney on the last possible day for filing does not qualify for consideration under the mailbox or prisoner mailbox rules, we conclude appellant did not file a timely notice of appeal. See TEX. R. APP. P. 9.2(b), 25.2(b), (c), 26.2(a); Campbell, 320 S.W.3d at 344.
We therefore turn to appellant's second argument that he reasonably explained his failure to timely file the notice of appeal and his second notice of appeal should be viewed as a motion requesting an extension of time to file the notice of appeal. The rules of appellate procedure provide that the time to file a notice of appeal may be extended if the party files, within fifteen days of the filing deadline, a notice of appeal and "a motion complying with Rule 10.5(b)." See TEX. R. APP. P. 26.3. To constitute a motion complying with rule 10.5(b), the motion to extend must state: the deadline for filing the notice of appeal; the facts relied on to reasonably explain the need for an extension; the identity of the trial court; the date of the trial court's judgment; and the case number and style of the case in the trial court. See TEX. R. APP. P. 10.5(b).
Appellant's second notice of appeal is just that—it does not purport to be a motion for extension of time nor could it be reasonably construed as such. Moreover, even if we were to characterize it as a motion to extend, it does not comply with rule 10.5(b) in that it does not state the deadline for filing the notice of appeal, does not provide any explanation for why the notice of appeal was untimely filed, and it does not state the date of the trial court's judgment. We cannot conclude appellant's second notice of appeal should be interpreted as a motion to extend the time to file his notice of appeal.
To the extent appellant contends his first notice of appeal contained the "reasonable explanation" for the untimeliness of his filing, rule 10.5(b) does not provide that the notice of appeal and the motion for extension may be the same document. Moreover, we cannot conclude appellant's explanation—that "[a]fter further thought," he was unhappy with the outcome of his case—can be construed as an explanation of why his notice of appeal is filed late.
Because appellant's notice of appeal was untimely and no motion to extend the time to file the notice of appeal was filed, we conclude we have no jurisdiction over this appeal. See TEX. R. APP. P. 26.2(a)(1); Slaton, 981 S.W.2d at 210. We, therefore, grant the State's motion to dismiss.
We dismiss the appeal.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160921F.U05
JUDGMENT
On Appeal from the 291st Judicial District Court, Dallas County, Texas
Trial Court Cause No. F15-51952-U.
Opinion delivered by Justice Bridges. Chief Justice Wright and Justice Evans participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered August 21, 2017.