Artis Charles Harrell v. Branch Brinson

Opinion issued December 10, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00786-CV
———————————
ARTIS CHARLES HARRELL, Appellant
V.
BRANCH BRINSON, Appellee
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2006-02867
MEMORANDUM OPINION
This is an attempted appeal from an “Order of (Partial) Dismissal for Want
of Prosecution,” a “Final Judgment,” and an “Order Sustaining a Contest” signed
March 25, 2013 and May 7, 2013. Appellant, Artis Charles Harrell, filed his notice
of restricted appeal on September 6, 2013.
Appellant’s notice of restricted appeal does not comply with the
requirements for proceeding as a restricted appeal. See TEX. R. APP. P. 25.1(d)(7).
Specifically, the notice (1) does not “state that the appellant is a party affected by
the trial court’s judgment but did not participate—either in person or through
counsel—in the hearing that resulted in the judgment complained of;” (2) does not
“state that the appellant did not timely file either a postjudgment motion, request
for findings of fact and conclusions of law, or notice of appeal;” and (3) is not
verified by appellant. Id. On October 31, 2013, this Court notified appellant of his
failure to comply with Texas Rule of Appellate Procedure 25.1 and instructed
appellant to file an amended notice of appeal within 10 days. See TEX. R. APP. P.
25.1(g). Appellant was notified that failure to file an amended notice of appeal,
which corrected the defects, would result in dismissal of his appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a).
In response, appellant attempted to file an amended notice of restricted
appeal. However, appellant’s amended notice of restricted appeal still does not
meet the requirements of the Texas Rules of Appellate Procedure. See TEX. R.
APP. P. 25.1(d)(7).1
1
Additionally, appellant’s amended notice of appeal appears only to relate to
appellant’s appeal of the May 7, 2013 “Order Sustaining a Contest.” Appellant
has failed to amend his notice of restricted appeal for the “Order of (Partial)
Dismissal for Want of Prosecution” and the “Final Judgment” signed March 25,
2013.
2
Further, appellant’s deficient notice of restricted appeal reflects that
appellant is attempting to appeal the “Order of (Partial) Dismissal for Want of
Prosecution” and the “Final Judgment” signed March 25, 2013. An attempted
appeal from these matters was dismissed by this Court on July 11, 2013 for
nonpayment of all required fees. See Harrell v. Brinson, No. 01-13-00313-CV,
2013 WL 3523775, at *1 (Tex. App.—Houston [1st Dist.] July 11, 2013, no pet.).
Appellant is not entitled to a second appeal. See Minnfee v. Proyor, No. 01-12-
00943-CV, 2013 WL 709254, at *1 (Tex. App.—Houston [1st Dist.] Feb. 26,
2013, no pet.); Velasquez v. Lunsford, No. 14-99-00186-CV, 2000 WL 64115, at
*1 (Tex. App.—Houston [14th Dist.] Jan. 27, 2000, no pet.).
Finally, appellant’s deficient notice of restricted appeal also reflects that
appellant is attempting to appeal an order sustaining a contest to an affidavit of
indigence signed on May 7, 2013. We may review a challenge to an order
sustaining a contest to an affidavit of indigence only when it is made part of an
already pending appeal from a final judgment or other appealable order. See
Dorsett v. Archstone Memorial Heights, No. 01-12-00570-CV, 2012 WL 3234119,
at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, no pet.); see also TEX. R. APP.
P. 20.1(j). The order appellant seeks to have reviewed was entered in connection
with appellant’s previously dismissed appeal and was addressed by this Court in
that case.
3
On October 31, 2013, the Court notified appellant of its intent to dismiss this
appeal for want of jurisdiction unless appellant filed a response demonstrating this
court’s jurisdiction within 10 days. See TEX. R. APP. P. 42.3(a). Appellant has not
filed an adequate response.
Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.
APP. P. 42.3(a). We dismiss all other pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Higley, and Massengale.
4