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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Tuesday, February 11, 2014

If You Mail Your Notice of Appeal Timely, and It Gets to the Trial Court Clerk Less than 10 Days after the Deadline, That's Good Enough..

You invoke the jurisdiction of a Texas state appeals court by filing a notice of appeal in the trial court whose ruling or judgment you are unhappy with. If a notice of appeal is sent to the appeals court clerk by mistake, the clerk is supposed to send it to the proper trial court clerk. Texas Rule of Appellate Procedure 9.2(b)(1) is that "[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."
Prisoner Henry Earl Taylor caught a criminal judgment that he didn't want on November 18, 2010. He didn't file a motion for new trial so his notice of appeal was due 30 days later: December 18, 2010.  December 18, 2010 was a Saturday, so Taylor had till Monday December 20, 2010. The Clerk of the First Court of Appeals in Houston stamped a undated, handwritten notice of appeal December 21, 2010.  The trial court clerk stamped the notice of appeal as received on December 27, 2010. A panel of First Court Justices Laura Carter Higley, Jim Sharp, and Rebecca Huddle wrote a not-for-publication per curiam memorandum opinion that said that the record did not have an envelope nor a certificate of service for the notice. They said that Taylor's appellate counsel had not argued that the filing was timely, but that the First had given permission for the notice to be late in an October ruling. When Taylor himself finally urged that he had mailed timely and that the notice had been received timely, the panel said that he had not because he had not sent it to the proper clerk, properly addressed and stamped and that there was no proof that he had placed it in an envelope or wrapper. It dismissed the appeal. Texas Court of Criminal Appeals Judge Elsa Alcala, writing an opinion for a majority including Judges Lawrence E. Meyers, Tom Price, Cheryl Johnson, Barbara Parker Hervey, and Cathy Cochran, overruled the panel " . . .because the rules of appellate procedure required the clerk of the court of appeals to forward appellant’s notice of appeal to the trial-court clerk, and because his notice of appeal was actually received by the convicting court within the time limits established under the mailbox rule, appellant’s apparent mistake in sending his notice of appeal to the court of appeals instead of to the district-court clerk was, at most, a harmless procedural defect that did not render the notice of appeal untimely."
Presiding Judge Sharon Keller's dissent, joined by Judge Michael E. Keasler, appears to me to be well reasoned. She argues that the majority does not address Houston's point-- that there is no proof that the notice was enveloped and mailed straight to any clerk, even if one agrees with Taylor that his mailbox drop and the trial court's eventual receipt less than ten days was timely. Judge Paul Womack dissented without opinion.
This case reminds me of September's Cortez case in which the CCA reversed Amarillo's Seventh Court of Appeals for what the high judges took to be a cheesy dismissal.
The State of Texas is in the process of gradually switching from paper filing to electronic filing, though there are no present plans to ever make unrepresented prisoner litigants file electronically, Electronic filing will minimize the cases in which these mailbox rules will be relevant.
Henry Earl Taylor v. State of Texas, No.PD-0180-13, (Tex. Crim. App., Feb. 5, 2014) (slip op.)
Hat tip to the learned, charming, and extremely plain-spoken Jim Skelton and his Criminal Law Institute, which I recommend highly.

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