Patricia Elizabeth Harkcom v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00576-CR
PATRICIA ELIZABETH HARKCOM APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12165
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DISSENTING OPINION
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I respectfully dissent. Under the narrow facts presented here, I would hold
that Appellant timely invoked the jurisdiction of this court over her appeal.
The pertinent facts are:
·October 2, 2012—Appellant was sentenced in open court, starting the thirty day
timetable for filing a motion for new trial or a notice of appeal. See Tex. R. App.
21.4(a), 26.2(a).
·October 31, 2012—the trial court signed its judgment of conviction in
Appellant’s case.
·October 31, 2012—Appellant filed a one-page pro se form application for
appointment of counsel that contains a form order at the bottom for the trial court
to grant or deny the application.
·October 31, 2012—the trial court granted Appellant’s pro se application for
appointment of counsel and appointed appellate counsel.1
·November 1, 2012—Appellate counsel was notified that he was appointed to
represent Appellant on appeal.
·November 8, 2012—Appellate counsel filed a motion for new trial explaining
that “[t]his motion, has not been filed within the 30 day period,” that he was
notified of his appointment to represent Appellant on November 1, 2012, and that
the motion for new trial therefore “could not have been filed in the 30 day period.”
·November 8, 2012—Appellate counsel filed a notice of appeal.
·December 3, 2012—the trial court conducted a hearing on Appellant’s motion
for new trial.
·December 3, 2012—the trial court signed an order denying Appellant’s motion
for new trial.
Appellant had until November 1, 2012, to file her notice of appeal (or a
motion for new trial), and the only document she filed with the trial court by that
1
The trial court marked up the form, writing the word “Appeal” across the
top of the application, crossing through the word “denying” in the title of the order,
and handwriting in “on appeal,” so that the title of the order at the bottom of the
form reads “ORDER APPOINTING/DENYING COUNSEL ON APPEAL.” The
order appointed counsel for Appellant on appeal and the order was also stamped
filed in the trial court on October 31, 2012.
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deadline was her application for appointment of counsel and a declaration of her
inability to employ counsel. The majority holds that Appellant’s application for
appointment of counsel was insufficient to constitute a notice of appeal; I do not
dispute that in most cases, an application for appointment of counsel will not
indicate a desire to appeal sufficient to satisfy the notice of appeal requirement.
See Tex. R. App. P. 25.2(c)(2) (providing that a notice of appeal is sufficient if it
shows the party’s desire to appeal from the judgment).
Here, however, the trial court did not enter a written judgment for twenty-
nine days after sentencing Appellant in open court. One day before the thirty-day
deadline to file a notice of appeal (or motion for new trial), the trial court entered
its written judgment. On that same day, Appellant filed her application for
appointment of counsel and a declaration of her inability to employ counsel. The
trial court wrote in large black marker on the form application and order the words
“Appeal” and “ON APPEAL.” Appellant had not filed a motion for new trial or
motion in arrest of judgment prior to requesting appointment of counsel on
appeal, and considering that the deadline for filing such motions was the
following day, what “desire” could have been expressed by her request for
appointed counsel on appeal other than a desire to appeal the judgment signed
that day? Id.; see also Tex. R. App. P. 21.4(a), 22.3; cf. Jarrels v. State, No. 01-
01-00721-CR, 2001 WL 1301636, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25,
2001, no pet.) (not designated for publication) (noting, in rejecting appellant’s
argument that request for appointment of appellate counsel constituted notice of
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appeal, that appellant filed request on same day as motion for new trial and bill of
exceptions and that, at that time, appellant did not know whether his motion for
new trial would be granted or whether he would appeal the judgment).
The majority points to several cases from our sister courts holding that an
application for appointment of counsel does not qualify as a notice of appeal.
See Majority Op. @ 6–8. But in none of those cases was the judgment signed
the day before the deadline to file a notice of appeal, and in none of those cases
did the defendant request and the trial court grant appointed counsel for
“APPEAL” the day before the deadline to file a notice of appeal. Cf. Clark v.
State, 287 S.W.3d 355, 356 (Tex. App.—Texarkana 2009, no pet.); Jarrels, 2001
WL 1301636, at *1; Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—San
Antonio 1996, no pet.); Cooper v. State, 917 S.W.2d 474, 477 (Tex. App.—Fort
Worth 1996, pet. ref’d) (“We find that the order appointing counsel, under these
facts, does not act as a substitute for a timely filed notice of appeal.”) (emphasis
added).
I recognize that the time period for filing a notice of appeal begins from the
day that sentence is imposed, not from the date of the written judgment, see Tex.
R. App. P. 26.2(a), but I also recognize that a defendant’s notice of appeal must
show a “desire to appeal from the judgment,” Tex. R. App. P. 25.2(c)(2)
(emphasis added); see Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (West Supp.
2014) (“A judgment is the written declaration of the court signed by the trial judge
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and entered of record . . . .”).2 I further recognize that we are to apply the
perfection-of-appeal rules “reasonably, yet liberally” so that the right of appeal is
not lost by elevating form over substance. Few v. State, 230 S.W.3d 184, 189
(Tex. Crim. App. 2007). Based on the unique facts here, where the written
judgment was entered one day prior to the thirty-day deadline to appeal, where
Appellant filed her application for appointed counsel that same day, and where
the trial court twice indicated on that application that her request and the court’s
order was for “APPEAL,” and liberally construing the perfection-of-appeals rules,
I would hold that Appellant’s application for appointment of counsel sufficiently
showed her desire to appeal from the trial court’s judgment. See Tex. R. App. P.
25.2(c)(2). Consequently, because she timely filed that application, I would not
dismiss the appeal for want of jurisdiction.
Because the majority holds otherwise, I respectfully dissent.
/s/ Sue Walker
SUE WALKER
JUSTICE
PUBLISH
DELIVERED: October 2, 2014
2
Thus, how could Appellant express a desire to appeal from the judgment
until after it was entered?
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