Russell Wade Eason v. State ( 2011 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-11-00279-CR

No. 10-11-00280-CR

No. 10-11-00281-CR

No. 10-11-00282-CR

Russell Wade Eason,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court Nos. 2011-411-C2, 2011-412-C2,

2011-413-C2, and 2011-443-C2

MEMORANDUM  Opinion

            Russell Wade Eason appeals a conviction for unlawful possession of a firearm by a felon, two convictions for burglary of a habitation, and a conviction for theft over $20,000 but less than $100,000.  By letter dated July 27, 2011, the Clerk of this Court notified Eason that his appeals were subject to dismissal because the trial court’s certificate of right of appeal that Eason signed in each underlying criminal case indicated that the underlying criminal cases were plea bargain cases and that Eason had no right to appeal and waived his right to appeal.  See Tex. R. App. P. 25.2(d).  The Clerk also warned Eason that the appeals would be dismissed unless, within 21 days of the date of the letter, a response was filed showing grounds for continuing the appeals.  See Tex. R. App. P. 44.3.  We received a response from Eason; however, it does not provide grounds for continuing the appeal. 

Accordingly, these appeals are dismissed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Appeals dismissed

Opinion delivered and filed August 10, 2011

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[CR25]

106. See United Nat. Bank v. Travel Music, 737 S.W.2d 30, 32 (Tex. App.—San Antonio 1987, writ ref'd n.r.e.); Tex. R. Civ. P. 103, 106. Shelton did not attempt to deliver process personally to any agent for the corporation.

          The parties agree that the default judgment can be upheld only if the record shows strict compliance with the applicable rules relating to the issuance, service, and return of citation. See Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.).

          Lake Air asserts that substituted service of citation should not have been allowed because personal service was not attempted, that the affidavit supporting the motion for service under Rule 106 was defective, and that the record does not show any connection between the person who received the citation and Lake Air. See Tex. R. Civ. P. 106. Because of our disposition of the case, we do not reach any of those arguments.

          The record clearly shows that the citation was not served at the address authorized by the order. The order authorized service on Lake Air at 1425-B Lake Air Drive, Waco, Texas 76710. The postal service "green card" shows that the citation was addressed to Lake Air at 121 N. Post Oak Lane, Houston, Texas 77024. Thus, the face of the record reveals that the service of citation on Lake Air was not made in strict compliance with the rules and that the court had no jurisdiction to enter the default judgment. See id.

          We reverse the judgment and remand the cause for trial. A new citation addressed to Lake Air is unnecessary; by appealing, Lake Air has submitted itself to the jurisdiction of the court and is before the court for a trial on the merits. See Tex. R. Civ. P. 123.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Reversed and remanded

Opinion delivered and filed January 8, 1992

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