Kenneth Giddens v. State ( 2008 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00196-CR
______________________________
KENNETH GIDDENS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 04532
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
We have received an appeal from Kenneth Giddens in connection with the denial of his
application for writ of habeas corpus filed pursuant to Article 11.072, Section 2 of the Texas Code
of Criminal Procedure. See TEX . CODE CRIM . PROC. ANN . art. 11.072, § 2 (Vernon 2005). Giddens
was convicted of criminal mischief and sentenced to two years in a state-jail facility and placed on
community supervision for five years. The record reflects that the trial court entered an order
denying the application as frivolous, as authorized by Article 11.072, Section 7(a). See TEX . CODE
CRIM . PROC. ANN . art. 11.072, § 7(a) (Vernon 2005).
Under Article 11.072, Section 8, if the court denies an application, the movant may appeal
from that ruling to the court of appeals. TEX . CODE CRIM . PROC. ANN . art. 11.072, § 8 (Vernon
2005).
The trial court's ruling was signed on June 2, 2008. The notice of appeal was filed on
August 4, 2008, and on its face is thus untimely. See TEX . R. APP . P. 26.2(a)(1). The notice of
appeal states that it is late because counsel did not receive a copy of the signed order until July 30,
2008. See TEX . CODE CRIM . PROC. ANN . art. 11.072, § 7(b) (Vernon 2005) (requiring clerk to
immediately, by certified mail with return receipt requested, send a copy of the order to the parties).
Even assuming that this is correct, our jurisdiction over an appeal is circumscribed by statute
and rule, and we are not permitted to engage in actions that will enlarge that jurisdiction. Courts of
appeals may not employ Rule 2 of the Texas Rules of Appellate Procedure to suspend appellate time
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limits. Garza v. State, 896 S.W.2d 192 (Tex. Crim. App. 1995); see TEX . R. APP . P. 2. Without a
timely filed notice of appeal, this Court is without jurisdiction. Rodarte v. State, 860 S.W.2d 108
(Tex. Crim. App. 1993); see Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998).
We have provided counsel with an opportunity to explain how we might nonetheless be able
to exercise jurisdiction over this appeal, and counsel has suggested that we abate the case for
hearings under TEX . R. APP . P. 4.2 and TEX . R. CIV . P. 306a.
In support of that argument, counsel suggests that although Article 11.07 writs have been
held to be criminal proceedings, see Aranda v. District Clerk, 207 S.W.3d 785 (Tex. Crim. App.
2006), the court has not held that an 11.072 writ is criminal; thus, we have the option of treating it
as a civil proceeding and applying the civil procedural rules.1 In further support, counsel correctly
points out that the appellate timetables typically begin upon the pronouncing of sentence in open
court. Thus, a defendant has actual notice. In proceedings such as this, where the only ruling is
written, the act of a district clerk in sending notice becomes critical to the exercise of any appellate
remedy.
Although the State has conceded that the district clerk failed to provide the notice required
by the statute, we find that we cannot agree that this is a civil proceeding. Thus, the possible
extended timetable provided by Rule 306a of the Texas Rules of Civil Procedure cannot apply, and
as noted above, we have been instructed in detail by the Texas Court of Criminal Appeals that we
1
TEX . CODE CRIM . PROC. ANN . art 11.07 (Vernon Supp. 2008), art. 11.072 (Vernon 2005).
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may in no circumstances utilize the rules to expand our jurisdiction by lengthening the time available
to seek an appeal. See TEX . R. CIV . P. 306a. It thus appears that, in the same way as in a normal
criminal appeal, Giddens's remedy will be to seek an order granting an out-of-time appeal from the
Texas Court of Criminal Appeals.
We have no option but to dismiss the appeal for want of jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: October 21, 2008
Date Decided: October 22, 2008
Do Not Publish
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