Phillip Eugene Christian v. State ( 2006 )

PHILLIP CHRISTIAN V. THE STATE OF TEXAS NO. 07-05-0292-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 15, 2006 ______________________________

PHILLIP CHRISTIAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 64^TH DISTRICT COURT OF HALE COUNTY;

NO. A15160-0309; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pending before this Court is appellant's motion to dismiss his appeal. Appellant and his attorney both have signed documents stating that appellant withdraws his appeal. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

Mackey K. Hancock

Justice

Do not publish.

o se prisoner-appellant's notice of appeal is to be deemed timely filed if it was timely deposited in a prison mail receptacle, but was not actually received by the clerk by the filing deadline. If we answer that question in the negative, we must then decide whether the appellate court may consider the appeal to be perfected if the notice of appeal is filed in good faith, and is received by the clerk within 15 days from the filing deadline. For reasons we later express, we hold that the timely deposit of a notice of appeal in a prison mail receptacle does not constitute delivery to the proper clerk for filing, nor does such a deposit entitle appellant to the benefit of the "mailbox rule." However, we also hold that if the notice of appeal is filed in good faith and received within 15 days from the filing deadline, a motion for extension of time is implied and appeal deemed timely perfected.

Procedural Background

On June 24, 2002, the trial court entered a judgment modifying the parent-child relationship in a case styled In the Interest of Rebecca Lynn Crawford, a child, Cause No. A30,988-0007 in the 64th District Court of Hale County. The parents of the child are appellee Patsy Crawford (Patsy) and appellant Ricky Allen Crawford (Ricky). The deadline for filing a notice of appeal from the judgment was July 24, 2002. Ricky avers that he timely deposited a notice of appeal on July 21, 2002, in a prison mail receptacle; however, it arrived at the district clerk's office in an envelope postmarked July 25, 2002, and was filed on July 31, 2002.

Relevant Rules

Notices of appeal should generally be filed with the trial court clerk within 30 days after a final judgment is signed. See Tex. R. App. P. 26.1. If a notice of appeal is not received within the time provided in Rule 26.1, it may still be deemed timely filed pursuant to the "mailbox rule." Under this rule, a notice of appeal is considered timely if it was sent by United States mail, was deposited in the mail on or before the filing deadline, and was received within ten days after the filing deadline. See Tex. R. App. P. 9.2(b)(1); Tex. R. Civ. P. 5. A legible postmark affixed by the United States Postal Service is "conclusive proof" of the date of mailing. Tex. R. App. P. 9.2(b)(2)(A). But see Tex. R. Civ. P. 5 (providing that a postmark is "prima facie" evidence of the date of mailing). However, an appellant may obtain an extension of time to file the notice of appeal if the notice is filed within 15 days after the deadline filing date. See Tex. R. App. P. 26.3.

Discussion

In urging that this court has no jurisdiction to consider this appeal, appellee Rebecca Lynn Crawford cites and relies upon the court's decision in Kinnard v. Carnahan, 25 S.W.3d 266 (Tex.App.--San Antonio 2000, no pet.). In that case, and in a well-reasoned opinion, the court held that a timely deposit of a notice of appeal in a prison receptacle, which contained a postmark showing its deposit in the United States mail after the filing deadline, was not sufficient to entitle the appellant to the benefit of the "mailbox rule." Id. In arriving at that conclusion, the court reasoned that the deposit of a notice of appeal with prison authorities was not the same as depositing it in the United States mail or as filing it with the appropriate clerk. Id. The court noted there was a 15-day period after the deadline date within which an extension of filing time might be sought, but commented that the notice of appeal in that case was not filed within the 15-day period. Id.

In Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997), the court held that when a cost bond ⁽²⁾ was filed in good faith within 15 days beyond the filing deadline, "a motion for extension of time is necessarily implied." Id. at 617. En route to its decision, the court commented, ". . . [W]e have instructed the courts of appeal to construe the Rules of Appellate Procedure 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.

We think the Verburgt rationale and instruction is applicable here and, even though the "mailbox rule" is not applicable, because the notice of appeal was received by the district clerk and filed 15 days from the filing deadline, a motion for extension of time is necessarily implied, should be considered as granted, and the notice considered as timely filed.

Accordingly, we do have jurisdiction to consider the appeal and will do so. Ricky is given a period of 30 days from the date of this opinion within which to file an appellate brief. Patsy is given a period of 30 days from the date Ricky's brief is filed within which to file a reply brief.

Do not publish. Per Curiam

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2002).

2.

Texas Rule of Appellate Procedure 41(a)(1), as it read at that time, required the timely filing of a cost bond or affidavit in lieu thereof to perfect an appeal in a civil case. Rule 41(a)(2) provided that an extension of time might be granted by the appellate court if a motion reasonably explaining the need for an extension and the items required under Rule 41(a)(1) were filed with the motion. Those rules were the progenitors of our present Rules 26.1, which merely requires the timely filing of a notice of appeal, and 26.3 which, as we noted above, authorizes the appellate court to grant an extension of time if a motion meeting the requirements of the Rule is filed within 15 days after the deadline for filing a notice of appeal.