Randy Jackson 499825 v. the Texas Department of Criminal Justice ( 2004 )

NO. 07-03-0513-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 25, 2004

______________________________



RANDY JACKSON, APPELLANT

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 090839-00-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Randy Jackson, an inmate, filed a notice of appeal from the trial court's order denying his motion for summary judgment and dismissing his claims against the Texas Department of Criminal Justice pursuant to chapter 14 of the Texas Civil Practice and Remedies Code. We dismiss this purported appeal for want of jurisdiction.

The order was signed on October 15, 2003, Jackson's request for findings of fact and conclusions of law was filed on November 6, 2003, and the notice of appeal was filed on December 8, 2003. Noticing that the request for findings and the notice of appeal were both filed beyond the time allowed by Rule 296 of the Texas Rules of Civil Procedure and Rule 26.1 of the Texas Rules of Appellate Procedure, by letter dated February 17, 2004, this Court requested that Jackson reasonably explain on or before March 15, 2004, why this appeal should not be dismissed for want of jurisdiction.

Jackson timely responded explaining that he did not receive actual notice of the trial court's order until sometime between October 17th and October 20th and that the date he mailed his request for findings of fact on November 5, 2003, is within the 20 day deadline provided by Rule 296. He urges that pursuant to Rule 306a(4), the time period in which to file his request for findings of fact should not have begun until he received actual knowledge of the signing of the trial court's order of dismissal.

Rule 306a(4) of the Texas Rules of Civil Procedure extends the plenary power of a trial court when a party adversely affected by a judgment fails to receive notice or actual knowledge of the signing of the judgment within 20 days after it is signed. If notice or actual knowledge of a signed judgment is not received until 20 days after it is signed, the appellate timetable commences on the date notice is actually received. However, the timetable may not begin more than 90 days after the judgment is signed. Tex. R. App. P. 4.2(a); see also Tex. R. Civ. P. 306a(4); In re Simpson, 932 S.W.2d 674, 676 (Tex.App.--Amarillo 1996, no writ). It is incumbent upon the party complaining of late notice to prove by sworn motion, notice, and hearing in the trial court the date on which he or his attorney first received notice or actual knowledge of the signing of the judgment. Tex. R. Civ. P. 306a(5). After a hearing on a 306a(5) motion, the party must obtain a signed order specifying the date that notice or actual knowledge was first received. Tex. R. App. P. 4.2(c). Without adhering to the proper procedures and procurement of an order from the trial court finding the date on which notice or actual knowledge was received, this Court cannot depart from the original appellate timetable. Nothing in the record before us indicates that Jackson complied with proper procedures in the trial court; thus, his request for findings of fact was due to be filed on November 4, 2003. Failure to timely file the request deprived him of the additional time in which to file his notice of appeal. Tex. R. App. P. 26.1(a)(4). Thus, the notice of appeal was due to be filed no later than November 14, 2003, making the notice of appeal filed on December 8, 2003, untimely.

Accordingly, without an order from the trial court reciting the date when Jackson first received notice of the order of dismissal, we must adhere to the original appellate deadlines and dismiss this purported appeal for want of jurisdiction. Tex. R. App. P. 42.3(a). Jackson also filed a motion for extension of time in which to file his brief together with his response to this Court's letter of February 17, 2004. Having determined we are without jurisdiction, the motion is moot.

Don H. Reavis

Justice

ngs credited testimony of police officers over his own testimony. In making such response, however, appellant acknowledges and cites authority holding that at a suppression hearing, the trial judge is the trier of fact and exclusive judge of witness credibility and weight to be given witness testimony. Appellant's conclusions of abused discretion on the part of the trial court do not comport with longstanding and well-established law concerning appellate deference to trial court discretion.

Appellant's response also ascribes the crime of aggravated perjury to one of the officers who testified at trial because the officer's testimony differed from his written report. His response cites the Penal Code and case law for elements of aggravated perjury, but totally fails to address the standard of appellate review for conflicts in evidence presented to a jury. Such standards entail legal and factual sufficiency of the evidence underlying decisions of the factfinder based on deference to the factfinder's resolution of conflicts in evidence and credibility questions. The standards do not call for or authorize our re-evaluation of evidence by substituting a view of the evidence favored by the losing party. When conflicting evidence is presented to a jury, it is well-established that the jury is to determine the credibility of the witnesses and the weight to be given their testimony. Where the testimonial evidence is conflicting and requires an evaluation of demeanor and credibility of witnesses, the jury is the final judge of the weight of the evidence. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). On appeal we do not disturb the jury's credibility determinations. Id. A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. An appellate court is not to "find" facts, or to substitute its judgment for that of the jury. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Appellant's contention that conflicts in the evidence resulted in aggravated perjury ignore established precedent and are meritless in the context of this record.

Appellant further responds that the trial court abused its discretion in allowing the State to impeach him at trial with extraneous offense evidence which appellant alleges was not disclosed in accordance with the trial court's pre-trial orders. In regard to this response, appellant once again recognizes that the trial court's decision is reviewed for abuse of discretion. Appellant does not address that part of the record in which the trial court afforded him a hearing outside the presence of the jury on the matters he now urges as arguable error, and ruled against appellant's position. Nor does he address the lack of evidence of harm, such as (1) any surprise to his counsel by the evidence, or (2) how his case would have been tried any differently had the extraneous offense evidence been disclosed earlier. In light of the record, appellant's assertions are meritless and present no arguable grounds for an appeal.

In addition to reviewing the record in connection with the possible issues addressed by appellant's counsel and the pro se response filed by appellant, we have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree that the appeal is frivolous.

Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.

Phil Johnson

Chief Justice

Do not publish.