in Re Steven Frank Goad ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00331-CR

In re Steven Frank Goad

Original Proceeding

O R D E R

            We issued an opinion and a judgment[1] in this case on January 23, 2008, conditionally granting the requested writ of mandamus.  In re Goad, 243 S.W.3d 858 (Tex. App.—Waco 2008, orig. proceeding).  We stated:  “The writ will issue only if Respondent fails to advise this Court in writing within fourteen days after the date of this opinion that he has: (1) vacated the two September 6, 2006 orders directing the Department to withdraw funds from Goad’s inmate trust account; and (2) ordered the return of any funds withdrawn pursuant to those orders.”  Id. at 859.

            We thereafter held the issuance of our writ in abeyance because Respondent sought mandamus relief against our ruling in the Court of Criminal Appeals, which held that the underlying withdrawal orders were not criminal-law matters and that it thus did not have jurisdiction.  In re Johnson, 280 S.W.3d 866, 869-70, 874 (Tex. Crim. App. 2008) (orig. proceeding).  Subsequently, the Texas Supreme Court decided a similar case and held that such withdrawal orders are “more substantively civil than criminal.”  Harrell v. State, 286 S.W.3d 315, 319 (Tex. 2009).  That decision also held that the inmate was not constitutionally entitled to pre-withdrawal notice and that due process was satisfied.  Id. at 320-21.

            We then asked the parties to brief the status of our opinion and judgment. 

We find that our plenary power over our judgment has expired and that we cannot vacate or modify our judgment.  See Tex. R. App. P. 19.1(a); 19.3. Proceedings after our plenary power have expired are governed by Rule 19.3, which provides:

After its plenary power expires, the court cannot vacate or modify its judgment.  But the court may:

            (a) correct a clerical error in its judgment or opinion;

            (b) issue and recall its mandate as these rules provide;

(c) enforce or suspend enforcement of its judgment as these rules or applicable law provide;

(d) order or modify the amount and type of security required to suspend a judgment, and decide the sufficiency of the sureties, under Rule 24; and

            (e) order its opinion published in accordance with Rule 47.

Tex. R. App. P. 19.3.

            Based on the supreme court’s decision in Harrell, we suspend enforcement of our judgment and will not issue the writ in this proceeding.  Tex. R. App. P. 19.3.

                                                                                    PER CURIAM

Before Chief Justice Gray

and Justice Davis

(Chief Justice Gray joins none of the discussion in this order.  He does however agree that the Court will not issue the writ in this proceeding.)

Order issued and filed September 30, 2009

Do not publish

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[1] The judgment was incorrectly referred to as an “order.”

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From the 54th District Court

McLennan County, Texas

Trial Court # 1998-807-C

CONCURRING Opinion

Richard Reyes has filed additional pleadings, addressed to the Court of Criminal Appeals, which we will forward to that Court as a petition for discretionary review.  Tex. R. App. P. 68.  We are not issuing an opinion to “correct or modify” our prior opinion dismissing this cause for want of jurisdiction.  Id. 50. Thus, Chief Justice Gray’s dissenting opinion is not issued under Rule 50; rather, he now decides that he does not agree with his own decision in the original opinion in the case.  In light of that, I write to further explain the original opinion and why we have no jurisdiction over this criminal appeal.[1]

Reyes was convicted in 1999 in trial court cause number 1998-807-C of aggravated assault with a deadly weapon.  We affirmed that judgment under our cause number 10-99-00226-CR.  Reyes’ petition for discretionary review was refused.

Although Reyes’s notice of appeal did not include a copy of the trial court’s order that he now appeals from, he hand-wrote a copy of the order:

No. 1998-807-C

ORDER [sic]

Came on to be considered on December 1, 2004, that certain document designated by the defendant as follows:

Request for medical records (pro se)

And after review of same, the court is of the opinion that the same should be and is in all respects DENIED.

Signed on December 1, 2004

By George H. Allen

Judge Presiding

Filed 2004 Dec-1 PM 12:35 Karen C. Matkin District Clerk McLennan Co. TX

Reyes clearly filed his request for medical records under the trial court cause number for his criminal case in the 54th District Court of McLennan County, the court which convicted him, and we do not have jurisdiction to review his appeal of the order denying his request.  The fact that Reyes may have been requesting his medical records to potentially pursue a Tort Claims Act case is irrelevant, because he filed his request as a post-conviction motion in his criminal case.  Thus, we dismissed this appeal for want of jurisdiction.  See Kelly v. State, 151 S.W.3d 683, 685 (Tex. App.—Waco 2004, no pet.).

Reyes’s documents entitled “Petition for Coram Nobes” and “Motion for Leave to File Application for Writ Mandamus,” addressed to the Court of Criminal Appeals, could only be asking for a review of our dismissal opinion.  We must follow appellate rule 68 and forward the documents to the Court of Criminal Appeals as a petition for discretionary review.  See Tex. R. App P. 68.

BILL VANCE

                                                                   Justice

Concurring opinion delivered and filed May 11, 2005

Publish

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    [1]       Frankly, it seems improper to dissent two months later to an opinion one joined when issued.