Gordon Ray Lewis v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00185-CR
___________________________
GORDON RAY LEWIS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR12234
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION AND ABATEMENT ORDER
Appellant Gordon Ray Lewis appeals the denial of his motion for forensic
DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.05. Before we can address the
merits of his appeal, we must first determine whether we have jurisdiction to hear it.
To show the timeliness of his notice of appeal, Lewis relies on Rule 4.6 of the Texas
Rules of Appellate Procedure. See Tex. R. App. P. 4.6. The record, however, does
not show whether Lewis complied with Rule 4.6. We abate the appeal and remand
the case to the trial court for it to conduct a hearing to determine (1) the earliest date
when Lewis or his attorney received notice or acquired actual knowledge that the trial
judge had signed the order denying Lewis’s DNA motion and (2) whether that date
was more than twenty days after the judge signed the order. See Tex. R. App. P.
4.6(b)(2). The trial court is further instructed to sign an order with its findings as
required by Rule 4.6(c). See Tex. R. App. P. 4.6(c).
I. PROCEDURAL BACKGROUND DISCUSSION
Lewis is serving a life sentence for a capital murder committed in 2013. See
Lewis v. State, No. 02-13-00367-CR, 2014 WL 7204708, at *1 (Tex. App.—Fort Worth
Dec. 18, 2014, pet. ref’d) (mem. op., not designated for publication).
Years later, in March 2022, Lewis filed a motion for forensic DNA testing
under Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim.
Proc. Ann. art. 64.01. On August 30, 2022, the trial court had a hearing on Lewis’s
motion, and on February 16, 2023, the trial court signed an order denying it.
2
Lewis then attempted to appeal the order denying his motion for DNA testing.
But in doing so, he missed the standard appellate deadlines for perfecting the appeal,
see Tex. R. App. P. 4.1(a), 26.2(a)(1), and the deadline for extending the time to perfect
the appeal, see Tex. R. App. P. 26.3. He relied, instead, on Rule 4.6 of the Texas Rules
of Appellate Procedure. See Tex. R. App. P. 4.6. As discussed below, after reviewing
the record, we are unable to tell if Lewis met Rule 4.6’s requirements.
A. Rule 4.6
In the context of an order denying a DNA motion, Rules 26.2(a)(2) and 26.3
are not the only means to determine when a notice of appeal must be filed. If neither
the defendant nor his attorney received notice of the order within twenty days of its
signing, the timetable begins to run “on the earliest date when the defendant or the
defendant’s attorney received notice or acquired actual knowledge of the signing.”
Tex. R. App. P. 4.6(a).1
1. What a Rule 4.6 motion must contain
Rule 4.6 of the Texas Rules of Appellate Procedure addresses the procedure to
gain additional time to perfect an appeal:
(1) A defendant’s motion for additional time must:
(A) Be in writing and sworn;
(B) State the defendant’s desire to appeal from the appealable order;
1
The rule has one caveat: “[I]n no event shall such periods begin more than 120
days after the day the trial judge signed the appealable order.” Id. We are not
concerned with this caveat.
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(C) State the earliest date when the defendant or the defendant’s
attorney received notice or acquired actual knowledge that the
trial judge signed the appealable order; and
(D) Be filed within 120 days of the signing of the appealable
order.
Tex. R. App. P. 4.6(b)(1)(A)–(D).
2. Factual issues a Rule 4.6 motion must resolve
Once a motion to gain additional time is filed, Rule 4.6 addresses what happens
next procedurally:
(2) To establish the application of paragraph (a) of this rule, the
defendant adversely affected must prove in the trial court:
(A) The earliest date on which the defendant or the defendant’s
attorney received notice or acquired actual knowledge that the
trial judge signed the appealable order; and
(B) That this date was more than twenty days after the signing of
the appealable order.
Tex. R. App. P. 4.6(b)(2)(A)–(B).
3. Rule 4.6 anticipates an evidentiary hearing and requires a
written order with factual findings
As might be expected, a hearing is required to resolve the factual issues. And
after the hearing, the trial court must sign a written order with its factual findings:
(c) The Court’s Order. After hearing the motion for additional time, the
trial judge must sign a written order that determines the earliest date
when the defendant or the defendant’s attorney received notice or
acquired actual knowledge that the trial judge signed the appealable
order and whether this date was more than twenty days after the judge
signed the appealable order.
4
Tex. R. App. P. 4.6(c).
B. Lewis’s Rule 4.6 motion
Lewis filed in the trial court on June 9, 2023, a motion for additional time to
file a notice of appeal under Rule 4.6 of the Texas Rules of Appellate Procedure and,
along with it, a notice of appeal. But what Rule 4.6 requires and what Lewis put in his
motion varied. Lewis’s motion complied with some of Rule 4.6’s provisions but did
not comply with others.
1. Compliance
The motion complied with Rule 4.6 in two respects. First, it stated that Lewis
wanted to appeal the denial of his DNA motion. See Tex. R. App. P. 4.6(b)(1)(B).
Second, Lewis filed his motion within 120 days of the trial court’s February 16 order.
See Tex. R. App. P. 4.6(b)(1)(D).
2. Noncompliance
But the motion failed to comply with Rule 4.6 in two other respects. First, the
written motion was not sworn to. See Tex. R. App. P. 4.6(b)(1)(A). Second, it did not
specify when he or his counsel had notice or actual knowledge of the February 16
order. See Tex. R. App. P. 4.6(b)(1)(C). Instead, the motion presumed that Lewis’s
trial counsel (who had later been allowed to withdraw) received notice of the February
16 order “soon after that date.”
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3. Unopposed
The motion further asserted that it was unopposed: “The District Attorney
does not oppose the request for additional time.”2 As we shall see, the State’s
willingness not to oppose the motion impacted how the motion proceeded.
C. Trial court’s order
On June 30, the trial court granted Lewis’s motion for additional time and
ordered the notice of appeal filed. The order, in its entirety, provides,
On this day the Motion for Additional Time to File Notice of Appeal
came on to be considered. After consideration, the Motion is
...
GRANTED, and the Clerk is ordered to file the Notice of
Appeal.[3]
1. No hearing
Based on the order itself, the trial court did not appear to have held an
evidentiary hearing on Lewis’s Rule 4.6 motion. If there was an evidentiary hearing,
our record does not contain a reporter’s record of it.
2
The State’s willingness not to oppose Lewis’s motion effectively recognized his
right to appeal the denial of his DNA motion. See Tex. Code Crim. Proc. Ann. art.
64.05. A prosecutor’s “primary duty” is “to see that justice is done.” Id. art. 2.01.
In the original order, the document provides the words “DENIED” and
3
“GRANTED,” and “GRANTED” is circled.
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2. No factual findings
Either way—and more importantly—the trial court did not make the required
Rule 4.6(c) findings, i.e., it did not determine “the earliest date when the defendant or
the defendant’s attorney received notice or acquired actual knowledge that the trial
judge signed the appealable order and whether this date was more than twenty days
after the judge signed the appealable order.” See Tex. R. App. P. 4.6(c).
D. Jurisdiction
To invoke our appellate jurisdiction, an appellant must file a timely notice of
appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Rodriguez v. State,
No. 04-23-00717-CR, 2023 WL 5603205, at *1 (Tex. App.—San Antonio Aug. 30,
2023, no pet.) (per curiam) (mem. op., not designated for publication). Based on this
record, we cannot tell if Lewis’s notice of appeal is timely. When we identify a
concern about our jurisdiction, we must address that question sua sponte. Searls v.
State, No. 02-19-00136-CR, 2019 WL 4019678, at *2 (Tex. App.—Fort Worth Aug.
27, 2019, no pet.) (mem. op., not designated for publication). Thus, before assuming
jurisdiction, we must determine whether Lewis’s reliance on Rule 4.6 is justified.
II. RESOLUTION DISCUSSION
On appeal, the State does not object to the form of Lewis’s motion for
additional time or to the form of the trial court’s order granting it. As noted in
Lewis’s Rule 4.6 motion, the State did not oppose the extension, so the State’s
position on appeal is consistent with its position before the trial court.
7
But parties may not confer subject-matter jurisdiction on a court. See Ex parte
Derosier, No. 02-15-00100-CR, 2015 WL 6550557, at *3 (Tex. App.—Fort Worth Oct.
29, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Ex parte Sledge,
391 S.W.3d 104, 108 (Tex. Crim. App. 2013)), pet. ref’d, 490 S.W.3d 501 (Tex. Crim.
App. 2016). They cannot confer jurisdiction on a court by agreement. State v. Riewe,
13 S.W.3d 408, 413 (Tex. Crim. App. 2000). 4
Before we have jurisdiction, the record must establish that neither Lewis nor
his counsel had received notice or acquired actual knowledge of the signed order
denying Lewis’s DNA motion within twenty days after the trial court signed it. Tex.
R. App. P. 4.6(a). The trial court’s order granting Lewis’s motion does not resolve
these factual issues, as Rule 4.6(c) requires. See Tex. R. App. P. 4.6(c). But by
granting Lewis’s motion, the trial court implicitly found that Lewis met the factual
requirements.
The trial court’s failure to comply with Rule 4.6(c) can be explained
procedurally. Because the State did not complain about the procedural defects in
Lewis’s motion, the trial court’s failure to conduct an evidentiary hearing, or the trial
4
The Texas Court of Criminal Appeals later stated that the portion of Riewe that
asserted a defendant could not use Rule 25.2(d) of the Texas Rules of Appellate
Procedure to correct a jurisdictional defect in a notice of appeal was dicta and
declined to rely on it. See Bayless v. State, 91 S.W.3d 801, 805 n.8 (Tex. Crim. App.
2002); State v. Palmer, 469 S.W.3d 264, 266 n.2 (Tex. App.—Fort Worth 2015, pet.
ref’d).
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court’s order granting Lewis’s motion, all the procedural defects—and potentially all
the jurisdictional defects—went unchallenged.
Yet this is not a situation where Lewis alleged facts that fell within Rule 4.6’s
scheme and where the State stipulated to those facts. This is a situation in which
(1) Lewis alleged that he did not know when his counsel received notice or had actual
knowledge of the trial court’s order, (2) Lewis never stated when he had notice or
actual knowledge of the order, and (3) nothing in the record sheds any additional light
on the subject. In short, the record does not support Lewis’s compliance with Rule
4.6(a).
Nevertheless, at this juncture, we decline to dismiss Lewis’s appeal based on
• his failure to file a sworn Rule 4.6 motion,
• the absence of an evidentiary hearing at which Lewis showed when he and
his counsel had notice or actual knowledge of the February 16 order, or
• the trial court’s failure to make the necessary factual findings in its Rule 4.6
order as required by Rule 4.6(c).
We explain why.
When interpreting a text, we must presume that every word has been used for a
purpose and that each word, phrase, clause, and sentence should be given effect if
reasonably possible. State v. Hardin, 664 S.W.3d 867, 873 (Tex. Crim. App. 2022). We
do not focus strictly on a discrete provision but, instead, look at other statutory
provisions as well to harmonize text and avoid conflicts. Id.9
Other appellate rules favor giving an appellant the opportunity to correct errors
in a notice of appeal. Here are two examples: first, Rule 25.2(f) of the Texas Rules of
Appellate Procedure authorizes amending a defective notice of appeal, Tex. R. App.
P. 25.2(f), and second, Rule 37.1 of the Texas Rules of Appellate Procedure requires
giving an appellant an opportunity to correct any defect in a notice of appeal “so that
it can be remedied, if possible.” Tex. R. App. P. 37.1.
The appellate rules also recognize that counsel have not always been diligent
about notifying their clients that the trial court has ruled and about what their clients’
appellate options are. For example, Rule 48.4—adopted in 2007—requires defense
counsel to certify to an appellate court that counsel has sent a copy of the opinion to
the client and notified the client of the client’s right to file a pro se petition for
discretionary review. Tex. R. App. P. 48.4. A failure to notify the client might result
in a writ of habeas corpus seeking an out-of-time appeal based on ineffective
assistance of counsel. See, e.g., Ex parte Smith, 444 S.W.3d 661, 663–64 (Tex. Crim.
App. 2014); Ex parte Baldez, 510 S.W.3d 492, 496–97 (Tex. App.—San Antonio 2014,
no pet.). 5
Turning to Rule 4.6 itself and its wording, we note that procedural
requirements, even if mandatory, may be waived unless they are jurisdictional.
5
Rule 77.3 prohibits us from citing unpublished opinions of the Texas Court of
Criminal Appeals. Tex. R. App. P. 77.3. Accordingly, although numerous
unpublished opinions in which the court granted out-of-time appeals based on
ineffective assistance of counsel are available on Westlaw, we will not cite them. We
further note that many of them predate Rule 48.4’s adoption.
10
Comptroller v. Landsfeld, 352 S.W.3d 171, 174 (Tex. App.—Fort Worth 2011, pet.
denied) (citing In re United Servs. Auto. Ass’n (USAA), 307 S.W.3d 299, 307 (Tex. 2010)
(orig. proceeding)). When determining whether a procedural requirement is
jurisdictional, we apply statutory interpretation principles. See id. (citing City of DeSoto
v. White, 288 S.W.3d 389, 394 (Tex. 2009)). Our goal is to ascertain the drafters’ intent
by examining the statute’s plain language. Id. (citing City of DeSoto, 288 S.W.3d at 394);
see Hardin, 664 S.W.3d at 872 (“When we interpret statutes, we seek to effectuate the
collective intent or purpose of the legislators who enacted the legislation. In doing so,
we necessarily focus our attention on the literal text of the statute in question and
attempt to discern the fair, objective meaning of the text . . . .” (footnote omitted)).
Based on our review of Rule 4.6, some portions of it are jurisdictional while
other portions are procedural.
Specifically, Subsection (a) sets out the jurisdictional requirements. See Tex. R.
App. P. 4.6(a). Both the defendant and his attorney must not have received notice or
had actual knowledge that the trial judge signed the order within twenty days after its
signing. Id. The parties cannot waive these requirements by agreement. See Riewe, 13
S.W.3d at 413.
Turning to Subsection (b), it sets out the procedure for establishing the
jurisdictional requirements. See Tex. R. App. P. 4.6(b). Because the requirement that
the written motion be sworn to appears in Subsection (b) (the procedural provision)
but is not required under Subsection (a) (the jurisdictional provision) or thereafter in
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Subsection (c) (the factual recitations required in the trial court’s order), we conclude
that the fact that the motion is not sworn to is a procedural requirement that can be
waived absent an objection. See Comptroller, 352 S.W.3d at 174. Here, the State waived
any defect in Lewis’s motion by not objecting. 6
As for Subsection (c), it anticipates an evidentiary hearing and requires the trial
court to state in its order its findings regarding the dispositive jurisdictional facts
under Subsection (a). See Tex. R. App. P. 4.6(c). Because there apparently was no
evidentiary hearing and because the order did not comply with Rule 4.6(c), the State
could have objected, but it did not. One of the purposes of an objection is to give
opposing counsel an opportunity to respond. See Williams v. State, 662 S.W.3d 452,
460 (Tex. Crim. App. 2021). Here, Lewis was not given that opportunity. We
conclude that the failure to have a hearing and the error in the order are procedural
and, thus, waivable. See Comptroller, 352 S.W.3d at 174. By not objecting, the State
waived both defects. See id. This construction is consistent with Rules 25.2(f) and
37.1, both of which anticipate errors in notices of appeal and favor giving an appellant
an opportunity to correct those errors, if possible. See Tex. R. App. P. 25.2(f), 37.1.
6
Rule 4.6(b)(3) states that if an appellant’s motion complies with Rules 4.6(b)(1)
and (2), “the motion may serve as the defendant’s notice of appeal.” Tex. R. App. P.
4.6(b)(3). Rule 4.6(b)(3) thus provides both a reward for complying with Rules
4.6(b)(1) and (2) and a penalty for not complying with them—noncompliance means
the motion cannot double as the notice of appeal. Lewis, however, filed both a Rule
4.6 motion and, along with it, a notice of appeal. Lewis was not relying on his Rule
4.6 motion doubling as his notice of appeal.
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Our construction of Rule 4.6 as having jurisdictional and procedural portions is
not without some potentially contrary authority. On the civil side, Rule 306a of the
Texas Rules of Civil Procedure is comparable to Rule 4.6. See Tex. R. Civ. P. 306a; see
also Tex. R. App. P. 4.2. And civil case law suggests that procedural defects are fatal
to a Rule 306a motion. See, e.g., In re Peña, No. 13-18-00627-CV, 2019 WL 943371, at
*3 (Tex. App.—Corpus Christi–Edinburg Feb. 26, 2019, no pet.) (mem. op.) (“The
purpose of a sworn motion is to . . . reinvoke a trial court’s jurisdiction for the limited
purpose of conducting an evidentiary hearing to determine the date on which the
party or its counsel first received notice or acquired knowledge of the judgment.”);
Trevino v. Hale, No. 07-02-0235-CV, 2002 WL 1291246, at *1 (Tex. App.—Amarillo
June 11, 2002, no pet.) (not designated for publication) (“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 [c]ourt cannot depart from the
original appellate timetable.”); Carrera v. Marsh, 847 S.W.2d 337, 341 (Tex. App.—El
Paso 1993, orig. proceeding) (op. on reh’g) (“An unverified motion to reinstate . . .
cannot operate to extend the appellate timetable . . . .”). We are not persuaded that
simply because a rule addresses jurisdiction, every aspect of the rule is necessarily
jurisdictional. See Reid v. SSB Holdings, Inc., 506 S.W.3d 140, 148 (Tex. App.—
Texarkana 2016, pet. denied) (“There is no language in the statute that indicates that
the verification requirement is jurisdictional or providing that failure to verify the
complaint should result in dismissal.”); Comptroller, 352 S.W.3d at 177 (“The motion
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requirement means that a case may proceed against those governmental entities that
do not seek dismissal—in other words, that a county can waive a party’s
noncompliance. This confirms that compliance with the notice requirements is not
jurisdictional.” (quoting Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 926 (Tex. 2011)).
We decline to apply this harsh construction to Rule 4.6 when the State does not
oppose Lewis’s motion and when other provisions of the Texas Rules of Appellate
Procedure contemplate giving Lewis an opportunity to cure—if possible—any defects
in his notice of appeal. We see no benefit in forcing Lewis to file a writ of habeas
corpus seeking an out-of-time appeal if the deficiencies can be corrected on direct
appeal.
Although we conclude that the noted defects in Lewis’s Rule 4.6 motion and
proceedings are not necessarily fatal to his appeal, we are nevertheless not persuaded
that we have jurisdiction. Nor are we persuaded that we do not have jurisdiction.
Even if the State is willing to waive an evidentiary hearing and the defect in the
trial court’s order, we are not—especially where, as here, the record does not support
the order and where Rule 4.6(c) specifically requires the trial court to make the factual
findings establishing our appellate jurisdiction. Lewis’s failure to insist on
• a hearing and
• an order complying with Rule 4.6(c),
and the State’s failure to object to
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• the absence of a hearing and
• the order’s not complying with Rule 4.6(c)
may have the effect of improperly conferring jurisdiction on us where no jurisdiction
otherwise exists. See Riewe, 13 S.W.3d at 413.
Before assuming jurisdiction, we insist on a hearing and an order complying
with Rule 4.6(c). See Tex. R. App. P. 4.6(c); Black v. Curtis, No. 07-23-00261-CV, 2023
WL 6932554, at *1 (Tex. App.—Amarillo Oct. 19, 2023, order) (per curiam) (applying
Tex. R. Civ. P. 306a). Before we can assume jurisdiction under Rule 4.6, the record
must show the earliest date when Lewis and his attorney received notice or otherwise
acquired actual knowledge that the trial judge had signed the February 16 order and
whether that date was more than twenty days after February 16. See Tex. R. App. P.
4.6(a), (c).
III. CONCLUSION
Accordingly, we abate the appeal for the trial court to conduct within thirty
days of the date of this order a hearing to determine:
• the earliest date when Lewis and his trial attorney received notice or
acquired actual knowledge that the trial judge had signed the February 16,
2023 order, and
• whether this date was more than twenty days after the judge signed the
February 16, 2023 order.
After conducting the hearing, the trial court “must sign a written order that
determines the earliest date when the defendant or the defendant’s attorney received
15
notice or acquired actual knowledge that the trial judge signed the appealable order
and whether this date was more than twenty days after the judge signed the appealable
order.” See Tex. R. App. P. 4.6(c).
Within forty days of the date of this order, a supplemental reporter’s record of
the abatement hearing and a supplemental clerk’s record containing the trial court’s
factual findings should be filed in our court.
After we receive both the supplemental reporter’s record of the hearing and the
supplemental clerk’s record containing the trial court’s order, the appeal will be
automatically reinstated. After the appeal is reinstated, we will determine whether we
have jurisdiction over it. See Bell v. State, 649 S.W.3d 867, 884 (Tex. App.—Houston
[1st Dist.] 2022, pet. ref’d) (stating that courts have jurisdiction to determine whether
they have jurisdiction).
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 21, 2023
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