Timothy Lawrence Moore v. State ( 2003 )

NO. 07-03-0161-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 24, 2003

______________________________



TIMOTHY LAWRENCE MOORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 44,846-C; HONORABLE PATRICK A. PIRTLE, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION ⁽¹⁾

Pursuant to a pro se notice of appeal expressing a desire to appeal from a charge of robbery, this Court assigned the above-referenced cause number. Appellant also filed notices of appeal from convictions for burglary of a habitation in cause number 07-03-0129-CR and for aggravated robbery in cause number 07-03-0130-CR, which appeals were abated and the causes remanded to the trial court for further proceedings. However, by his docketing statement in this appeal, appellant indicates the robbery charge was dropped. Rule 27.1(b) of the Texas Rules of Appellate Procedure provides that a notice of appeal is ineffective if filed before the trial court makes a finding of guilt or receives a jury verdict. Thus, there being no finding of guilt on the charge of robbery, the notice of appeal is ineffective to invoke the jurisdiction of this Court.

Accordingly, the purported appeal is dismissed for want of jurisdiction.

Don H. Reavis

Justice

1. Tex. R. App. P. 47.2(a).

not ignore Warren's contention that this cause falls within an exception to the rule announced in Abor. The exception pertains to effort by one district court to interfere with another's jurisdiction. When that occurs, then mandamus may indeed issue, In re State Bar, 113 S.W.3d at 734, assuming, of course, that the relator has satisfied every other element for securing the relief. Warren believes that is occurring here because the 121^st purportedly has within its registry or custody funds that constitute part of the dispute involved in the suits pending in the 99^th.

It is true that one court may not ordinarily interfere with property held by another court in custodia legis. First Southern Properties, Inc. v. Vallone, 533 S.W.2d 339, 342-43 (Tex. 1976). So too is it true that this rule is founded upon the premise that the court possessing the property acquires jurisdiction to entertain all controversies involving the property. Id. Yet, the question of mandamus and the availability of an adequate legal remedy in lieu of mandamus was not at issue in Vallone, a case on which Warren relies to support his contention. Moreover, authority has recognized not only that property may be held in custodia legis by one court while ownership of that property is resolved by another but also that the court lacking possession of the res has jurisdiction to continue as long as it does not disturb the other's possession of the res. Kull v. Brown, 165 S.W.2d 1011, 1014 (Tex. Civ. App.-Texarkana 1942, no writ). And, coincidentally, the latter rule seems to echo that described in In re State Bar and directing that, for purposes of mandamus, an appeal is an adequate remedy so long as one court does not issue "an order that directly interferes with another court's jurisdiction." In re State Bar, 113 S.W.3d at 734 (emphasis added).

Here, we are cited to no evidence of an order by which the 99^th tried to obtain possession of, otherwise exercise any control over, or in any way divest the 121st of the monies held within its registry. Until such evidence arises and is brought to our attention, we cannot but hold that appeal is an adequate remedy by which to review the order denying Warren's motion to abate. See e.g. Eikenburg v. Webb, 880 S.W.2d 781, 782 (Tex. App.-Houston [1^st Dist.] 1993, orig. proceeding) (granting mandamus relief because effort actually was made to remove the funds within the trial court's registry). This seems especially so when, as here, the suits pending in the 99^th involve issues other than simply ownership of the funds held by the 121st. ⁽¹⁾

In closing, we recognize the increased expense inherent in trying similar issues between similar or identical parties in different courts. Yet, the Supreme Court has provided us with the controlling rules, and we must follow them. Accordingly, the petition for writ of mandamus is denied.

Brian Quinn

Justice

1. The suits initiated in the 99^th by How 1, Inc. encompass causes of action sounding in breached contract and damages for same, specific performance, breached fiduciary duty and damages for same, conversion of a partnership interest and damages for same, and injunction. Thus, much more is involved in the suits than simply who owns the money that Warren deposited with the 121^st. And, this circumstance also distinguishes our case from that before the court in Harris v. Moore, 740 S.W.2d 14 (Tex. App.-El Paso 1987, orig. proceeding), another case upon which Warren relies. In Harris, the sole issue in the second suit apparently involved an attorney's attempt to secure a portion of the funds held by another court. Moreover, nowhere did the court in Harris mention Abor or have the benefit of In re State Bar, both of which held that, when considering whether to issue a writ of mandamus, an appeal constituted an adequate remedy as long as one court did not interfere with or issue an order interfering with the jurisdiction of the other. So, Harris is not persuasive.