Harkcom, Patricia Elizabeth , 2016 Tex. Crim. App. LEXIS 51 ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0180-15
PATRICIA ELIZABETH HARKCOM, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
HOOD COUNTY
J OHNSON, J., delivered the opinion of the Court in which M EYERS, K EASLER,
H ERVEY, A LCALÁ, R ICHARDSON, and N EWELL, JJ., joined. K ELLER, P.J., and Y EARY,
J., concurred.
OPINION
Appellant Patricia Elizabeth Harkcom was charged with possession of a controlled substance,
methamphetamine, in an amount of less than one gram.1 After conviction, the court of appeals
dismissed her appeal for want of jurisdiction, and appellant petitioned this Court for discretionary
review. We reverse.
Facts
1
T EX . H EALTH & S AFETY C O D E § 481.115(a), (b).
2
On December 31, 2011, appellant was a passenger in a car in which methamphetamine was
discovered during a routine traffic stop. Appellant was arrested and charged with possession of a
controlled substance, methamphetamine, of less than one gram. On October 2, 2012, appellant was
convicted of a state jail-felony and was sentenced to twenty-four months’ imprisonment and a
$2,250.00 fine. The trial court certified her right to an appeal that same day. On October 30, 2012,
the twenty-eighth day after the sentence was imposed, appellant filed a pro se application for
appointment of counsel, writing the word “APPEAL” on the top of the document. This was the only
document made available to appellant while incarcerated, and she had not yet been appointed an
attorney. On October 31, 2012, twenty-nine days after the sentence was imposed, the trial court
granted appellant’s application for appointment of counsel and changed the title of the document to
“Order Appointing Counsel on Appeal” by adding the words “ON APPEAL” in block letters to the
original title and crossing out the word “Denying” in the phrase “Order Appointing/Denying
Counsel.” It is clear from this amended document that the trial judge understood the appellant to be
acting pro se and giving notice of appeal. The trial court signed and filed the judgment the same day.
Appellate counsel was notified of his appointment the next day, thirty days after sentence was
imposed. Appellate counsel filed a more formal notice of appeal on November 8, 2012, seven days
past the 30-day deadline to timely file a notice of appeal.2
The Judgment of the Court of Appeals
The court of appeals dismissed the appeal for want of jurisdiction due to the lack of
2
T EX . R. A PP . P. 26.2(a)(1). Counsel could have filed this second notice of appeal with a motion in
accordance with T EX . R. A PP . P. 10.5(b), which would have allowed the trial court to extend the time in which to file
an appeal.
3
a timely notice of appeal. Harkcom v. State, No. 02-12-00576-CR, 2014 WL 4923003, at *4 (Tex.
App.—Fort Worth Oct. 2, 2014, pet. granted). It stated that a timely notice of appeal was essential
to vest the court with jurisdiction. Id. The court of appeals reasoned that appellant’s application for
appointment of counsel did not necessarily convey a desire to appeal and therefore did not give
timely notice of appeal. Id. As the record was devoid of a timely notice of appeal or a timely motion
for extension of time to file a notice of appeal, the court of appeals concluded that it must dismiss
the appeal for want of jurisdiction. Id.
The court of appeals recognized that a notice of appeal is sufficient when it shows a
defendant’s desire to appeal. Id. And it recognized that this Court has instructed the courts of
appeals to liberally construe rules related to the perfection of an appeal. Id. (citing Few v. State, 230
S.W.3d 184, 190 (Tex. Crim. App. 2007)). Still, the court of appeals concluded that the handwritten
reference to an appeal on the order granting appellant’s application is not determinative and “does
not necessarily reflect the trial court’s understanding of appellant’s present intent to appeal.” Id.
Explaining further, the court appeals stated, “[I]t may, instead, reflect the court’s acknowledgment
that appellant would need counsel if she later decided to appeal.” Id. We find this analysis contrary
to our instruction to construe the rules related to the perfection of an appeal liberally.
Application
A defendant’s notice of appeal is timely filed if it is filed within 30 days after the day the
sentence is imposed or suspended in open court or, if the defendant has filed a timely motion for new
trial, within 90 days after the day the sentence is imposed.3 Notice must be given in writing and filed
3
T EX . R. A PP . P. 26.2(a)(1), (a)(2).
4
with the trial-court clerk.4 Notice is sufficient if it shows the party’s desire to appeal from the
judgment or other appealable order.5
The Texas Rules of Appellate Procedure were amended in 2002 to prevent trivial, reparable
mistakes or defects from divesting appellate courts of the jurisdiction to consider the merits of both
state and defense appeals in criminal cases. Few, 230 S.W.3d at 187. The Rules of Appellate
Procedure should be construed reasonably, yet liberally, so that the right to appeal is not lost by
imposing requirements not absolutely necessary to effect the purpose of a rule. Id. at 189 (citing
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)).
A person’s right to appeal a civil or criminal judgment should not depend upon traipsing
through a maze of technicalities. Id. at 190. We do not require “magic words” or a separate
instrument to constitute notice of appeal. All that is required is that the notice be in writing, be
submitted within thirty days or ninety days after sentencing, as appropriate, and show the party’s
desire to appeal from the judgment or other appealable order. In this instance, appellant used the
materials available to her while incarcerated. We know that, by adding the simple word “APPEAL”
to the Order requesting counsel, appellant was able to make clear to the trial-court judge that she was
attempting to invoke the appellate court’s jurisdiction because the judge further amended the
document by adding the words “ON APPEAL” after the phrase “Order Appointing/Denying
Counsel,” crossing out “Denying,” and appointing appellate counsel. The trial-court judge thereby
recognized appellant’s intent to give a notice of appeal and request appellate counsel. Construing
the Rules of Appellate Procedure liberally leads us to conclude that appellant gave sufficient notice
4
T EX . R. A PP . P. 25.2(c)(1).
5
T EX . R. A PP . P. 25.2(c)(2).
5
of appeal to invoke the appellate court’s jurisdiction.
We reverse the judgment of the court of appeals and remand this case to that court for further
proceedings consistent with this opinion.
Delivered: March 9, 2016
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