Paula Michelle Osborne v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00075-CR

Paula Michelle Osborne,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F41677

MEMORANDUM  Opinion

            Paula Michelle Osborne appeals her conviction for theft by check of over $1500.  The judgment recites that Osborne was sentenced in open court on January 11, 2008.  No motion for new trial was filed.  The notice of appeal was, therefore, due to be filed on February 11, 2008.  Tex. R. App. P. 26.2(a)(1).  Appellant’s notice of appeal was not filed until February 28, 2008, 17 days late.

            By letter, the Clerk of this Court notified Osborne that the appeal was subject to dismissal for want of jurisdiction because the notice of appeal appeared untimely.  The Clerk also warned Osborne that her appeal may be dismissed unless, within 21 days from the date of the letter, Osborne filed a response showing grounds for continuing the appeal.  Osborne filed a response on March 13, 2008 in the form of a motion for extension of time to file a notice of appeal explaining that counsel did not receive notice of his appointment as counsel until after the deadline had passed for filing the notice of appeal.  However, the motion was not timely filed and does not provide us with any means to assert our jurisdiction over this appeal.  See Tex. R. App. P. 26.3.  A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction.  Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988).  Osborne’s notice of appeal was not timely.  We do not have jurisdiction of this appeal. 

            Accordingly, Osborne’s motion for extension of time to file her notice of appeal is denied, and this appeal is dismissed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Justice Vance concurs with the judgment with a note) *

Appeal dismissed

Opinion delivered and filed April 30, 2008

Do not publish

[CR25]

            * “(Rule 26.2 is somewhat ambiguous in providing a time limit running from “the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order.”  Tex. R. App. P. 26.2(a)(1).  Appeals are taken from judgments, not sentences, so the judgment is an appealable order.  Here, the judgment was signed on January 15, 2008 and a notice of appeal was filed on February 28.  It would be timely if measured from the date of the judgment rather than the sentence and if we could imply a motion for extension of time in criminal cases as we do in civil appeals.  See Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d) (per curiam) (discussing difference in civil and criminal requirements).  Although it seems to be a waste of judicial resources, Osborne’s only remedy, if any, is an application for writ of habeas corpus seeking an out-of-time appeal.  See Portley v. State, 89 S.W.3d 188 (Tex. App.—Texarkana 2002, no pet.) (discussing untimely appointment of counsel and remedy through habeas corpus).  We should be given authority to recognize and honor good-faith attempts to perfect a direct appeal in a non-capital criminal case.)”

ses out of an intentional tort and is barred by the Tort Claims Act.

In her amended petition, DeRouen alleges that she was handcuffed in a “negligent manner” and suffered injury to her “neck, arms, and hands as a result of the negligent condition use [sic], misuse of tangible property.”  In her deposition, DeRouen testified that the handcuffs “must have been too tight.”  She testified that officers acted maliciously, intended to harm her, and “wanted to teach me a lesson.”  She testified that the handcuffs were negligently applied because she “ended up being hurt.”

The Tort Claims Act bars claims “arising out of assault, battery, false imprisonment, or any other intentional tort…”  Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (Vernon 2005); see also State Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001).  “If a plaintiff pleads facts which amount to an intentional tort, no matter if the claim is framed as negligence, the claim generally is for an intentional tort and is barred by the TTCA.”  City of Waco v. Williams, 209 S.W.3d 216, 222 (Tex. App.—Waco 2006, pet. denied) (quoting Harris County v. Cabazos, 177 S.W.3d 105, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.)).  “A plaintiff cannot circumvent the intentional tort exception by couching his claims in terms of negligence.”  Id.

DeRouen alleges no facts to support her claim that officers negligently applied the handcuffs.  Based on her deposition testimony, the specific conduct of which she complains, i.e., applying the handcuffs too tight with intent to hurt or teach her a lesson, is intentional.  See Petta, 44 S.W.3d at 580; see also Williams, 209 S.W.3d at 223; Cameron County v. Ortega, 291 S.W.3d 495, 499 (Tex. App.—Corpus Christi 2009, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App.—Dallas 2004, no pet.); City of Laredo v. Nuno, 94 S.W.3d 786, 789 (Tex. App.—San Antonio 2002, no pet.); San Antonio v. Dunn, 796 S.W.2d 258, 261 (Tex. App.—San Antonio 1990, writ denied). We conclude that DeRouen is attempting to circumvent the intentional tort exception by merely alleging negligence.  The trial court properly granted the County’s traditional motion for summary judgment.

Given our disposition regarding the County’s traditional motion for summary judgment, we need not address the trial court’s granting of the County’s no-evidence motion.  See Tex. R. App. P. 47.1.  We affirm the trial court’s judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed September 1, 2010

[CV06]

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[1] The trial court also granted Scaman’s motion to dismiss filed in his individual capacity.