Benny Joe Palomo v. State ( 2010 )


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  •                                   NO. 07-10-0181-CV
    NO. 07-10-0182-CV
    NO. 07-10-0183-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL C
    DECEMBER 22, 2010
    ______________________________
    BENNY JOE PALOMO, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
    NOS. 18,223-B, 18,368-B, & 18,369-B; HONORABLE JOHN B. BOARD, JUDGE
    _______________________________
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
    OPINION
    On May 5, 2010, Appellant, Benny Joe Palomo, filed notices of appeal
    challenging the withdrawal notifications entered by the trial court in each referenced
    cause.    By opinion dated May 19, 2010, this Court concluded that no final, appealable
    orders had been entered and found Appellant's notices of appeal to be premature.
    Relying on Harrell v. State, 
    286 S.W.3d 315
    (Tex. 2008), the appeals were abated for
    180 days to allow Appellant an opportunity to challenge the withdrawals from his inmate
    account 1 in the trial court and obtain appealable orders.
    Generally, an appeal may be taken only from a final judgment or order. See
    Lehmann v. Har-Con Corp., 
    39 S.W.3d 191
    , 195 (Tex. 2001). The Texas Supreme
    Court has determined that an Order to Withdraw Inmate Funds, issued pursuant to
    section 501.014(e) of the Texas Government Code, is not an order; rather, it is a
    "notification by a court" directing prison officials to withdraw funds for an inmate's
    account. Harrell v. State, 
    286 S.W.3d 315
    , 316 n.1 (Tex. 2008). The Court concluded
    that receipt of a copy of the withdrawal notification (Order to Withdraw Funds) and an
    opportunity to be heard (Harrell's motion to rescind) 2 satisfied the requirements of due
    process. 
    Harrell, 286 S.W.3d at 320-21
    .
    Texas appellate courts have jurisdiction only over final orders or judgments
    unless a statute permits an interlocutory appeal.             See Ogletree v. Matthews, 
    262 S.W.3d 316
    , 319 n.1 (Tex. 2007). The denial of a motion to modify, correct, or rescind a
    withdrawal notification is a final, appealable order. See Ramirez v. State, 
    318 S.W.3d 906
    , 908 (Tex.App.--Waco 2010, no pet.). Jurisdiction of an appellate court is never
    presumed; if the record does not affirmatively demonstrate the appellate court's
    1
    Formerly referred to as inmate trust accounts, the term "trust" has been removed from statutory
    references. See Act of May 11, 1989, 71st Leg., R.S., ch. 212, § 2.01 1989 Tex. Gen. Laws 918, 958,
    amended by Act of May 17, 1999, 76th Leg., R.S., ch. 326, §1, 1999 Tex. Gen. Laws 1235, 1236 (current
    version at Tex. Gov't Code Ann. § 501.014 (West Supp. 2010)). Accordingly, they are simply inmate
    accounts.
    2
    The trial court denied Harrell's Motion to Rescind. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-
    0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 
    286 S.W.3d 315
    (Tex. 2008).
    2
    jurisdiction, the appeal must be dismissed. See El-Kareh v. Texas Alcoholic Beverage
    Comm'n, 
    874 S.W.2d 192
    , 194 (Tex.App.--Houston [14th Dist.] 1994, no writ).
    The deadline set by this Court's May 19, 2010 opinion for Appellant to obtain
    final, appealable orders has lapsed. An inquiry to the trial court clerk revealed that
    Appellant has not filed any challenges to the withdrawal notifications nor has he taken
    any action to obtain such orders. 3 Accordingly, we conclude the record before us does
    not invoke our jurisdiction and we dismiss these purported appeals for want of
    jurisdiction, without prejudice.
    Patrick A. Pirtle
    Justice
    3
    Even though the records of the trial court clerk do not reveal any action taken by Appellant to obtain an
    order either granting or denying a motion to modify, correct, or rescind the withdrawal notifications, he has
    twice corresponded with the Clerk of this Court indicating that he has been unable to obtain a ruling from
    the trial court. When a trial court fails or refuses to rule on a pending motion after being given adequate
    notice and a sufficient opportunity to consider and rule on the motion, a writ of mandamus may lie to
    compel the trial court to rule. O’Connor v. First Court of Appeals, 
    837 S.W.2d 94
    , 97 (Tex. 1992); In re
    Chavez, 
    62 S.W.3d 225
    , 228 (Tex.App.--Amarillo 2001, orig. proceeding).
    3