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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OPINION
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Appellant Patricia Elizabeth Harkcom attempts to appeal her state-jail-
felony conviction and twenty-four month sentence for possessing less than a
gram of methamphetamine. 1 Because appellant did not timely file a notice of
1
See Tex. Health & Safety Code Ann. §§ 481.102(6), .115(a)–(b) (West
2010).
appeal or a motion for an extension of time to file the notice of appeal, we must
dismiss the appeal. 2
Background Facts
A grand jury indicted appellant for possessing less than a gram of
methamphetamine. Appellant retained counsel. At a jury trial, she pled not
guilty. On October 2, 2012, the parties presented evidence and arguments on
appellant’s guilt and punishment to the jury. The jury found appellant guilty and
assessed her punishment at twenty-four months’ confinement (the maximum for
a state jail felony) and a $2,250 fine (less than the maximum). 3 The trial court
sentenced appellant in accordance with the jury’s verdicts.
After the trial court sentenced appellant on October 2, on the same day, it
certified her right to appeal. Appellant and her trial counsel signed the
certification, which recited that appellant had been informed of her rights
concerning an appeal.
The trial court signed and filed its judgment of conviction on October 31,
2012. That day, appellant, acting pro se, filed an application for appointment of
2
This case was originally submitted on September 17, 2013. On
June 10, 2014, the court, on its own motion, ordered the appeal to be
resubmitted on July 1, 2014; assigned this case to a new panel; and assigned
the undersigned to author the opinion.
3
See Tex. Penal Code Ann. § 12.35(a) (West Supp. 2014).
2
counsel and a declaration of her inability to employ counsel. 4 The application
stated, “I have been advised of my right to representation by counsel in the trial
of the charge pending against me. I certify that I am without means to employ
counsel of my own choosing and I hereby request the court to appoint counsel
for me.” [Emphasis added.] The application did not express appellant’s desire to
appeal. The trial court granted the application and appointed counsel. On its
order, the judge handwrote “ON APPEAL” to the end of typed words stating
“ORDER APPOINTING COUNSEL.”
On November 8, 2012, appellant, through newly-appointed counsel, filed
several documents, including designations of matters for inclusion in the
appellate record, a notice of appeal, and a combined motion for new trial and
motion in arrest of judgment. The notice of appeal stated that appellant had
already sought an appeal through her request for counsel. The motion for new
trial/motion in arrest of judgment, which was untimely filed, 5 alleged that the jury’s
verdict was contrary to the law and the evidence, that a new trial was warranted
in the interests of justice, and that appellant had not received effective assistance
from her trial counsel.
The trial court set a December 2012 hearing on appellant’s combined
posttrial motions. At the hearing, appellant focused her presentation of evidence
4
The record does not contain a motion or order permitting the withdrawal of
appellant’s trial counsel.
5
See Tex. R. App. P. 21.4(a), 22.3.
3
on alleged ineffectiveness of her trial counsel. Specifically, she appeared to
contend that her trial counsel, who was still representing her on other charges,
was ineffective for not calling two witnesses and for failing to attempt to negotiate
a favorable plea agreement. The trial court denied the combined motions on
December 3, 2012.
Jurisdiction
A notice of appeal that complies with the requirements of the rules of
appellate procedure is essential to vest this court with jurisdiction. See Tex. R.
App. P. 25.2(b); Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014);
Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). When a notice of
appeal is not timely filed, we must dismiss the appeal for lack of jurisdiction.
Castillo, 369 S.W.3d at 198; Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim.
App. 1996). Only the court of criminal appeals may grant an out-of-time appeal.
See Tex. Code Crim. Proc. Ann. art. 11.07, § 3(a) (West Supp. 2014); Olivo, 918
S.W.2d at 525 n.8; Wade v. State, No. 02-14-00004-CR, 2014 WL 1999308, at
*1 (Tex. App.—Fort Worth May 15, 2014, no pet.) (mem. op., not designated for
publication).
When a defendant has not filed a timely motion for new trial, the defendant
must file a notice of appeal within thirty days after the day the trial court imposed
its sentence in open court. Tex. R. App. P. 26.2(a)(1). Thus, because the trial
court sentenced appellant on October 2, 2012 and she did not timely file a motion
for new trial, her notice of appeal was due by November 1, 2012. See Tex. R.
4
App. P. 4.1(a), 26.2(a)(1). The only document that appellant filed between her
date of sentencing and November 1, 2012 was her application for appointment of
counsel. And although appellant filed a notice of appeal in the trial court within
fifteen days after the November 1, 2012 deadline, she did not, as required by rule
of appellate procedure 26.3, file a motion for extension of time in this court during
that same time period. 6 See Tex. R. App. P. 26.3(b); Castillo, 369 S.W.3d at
201; Olivo, 918 S.W.2d at 523 (“When a notice of appeal, but no motion for
extension of time, is filed within the fifteen-day period, the court of appeals lacks
jurisdiction to dispose of the purported appeal in any manner other than by
dismissing it for lack of jurisdiction.”).
In responding to our jurisdictional inquiries, appellant contends only that
the application for appointment of counsel qualifies as a timely notice of appeal;
she does not contend that rule 26.3 allows for an extension of time to file the
notice of appeal under the circumstances of this case. Several intermediate
appellate courts have examined, under various circumstances, whether an
6
Moreover, we did not receive a copy of the notice of appeal until
December 2012. We sent a letter to appellant’s counsel in January 2013 to
express our concern that we lack jurisdiction over the appeal. Appellant
responded to our letter that same month, contending that her application for
appointment of counsel qualified as a timely notice of appeal. We informed
appellant in February 2013 that we would continue the appeal, and we eventually
received briefs on the merits, in which appellant raised one issue alleging
ineffective assistance of her trial counsel. In June 2014, by order, we
resubmitted this appeal and assigned it to the current panel. Thereafter, we
again sent appellant a letter expressing our concern that we lack jurisdiction.
5
application for appointment of counsel, or a similar document, may qualify as a
notice of appeal.
For example, in Clark v. State, the Texarkana court held that a
postconviction application for a court-appointed attorney, standing alone, did not
qualify as a notice of appeal. 287 S.W.3d 355, 356 (Tex. App.—Texarkana
2009, no pet.). The court distinguished one of its prior cases, in which it had held
that a notice of appeal had been filed when a postconviction request for
appointed counsel was joined with a request for a copy of the record and with a
district clerk’s written acknowledgement that the defendant had given oral notice
of intent to appeal. See id. (citing Massey v. State, 759 S.W.2d 18, 19 (Tex.
App.—Texarkana 1988, no pet.)); see also Baez v. State, 235 S.W.3d 839, 840–
41 (Tex. App.—Texarkana 2007, pet. ref’d) (concluding that a postconviction
motion to withdraw as counsel, which included language expressing the
defendant’s desire to appeal, was not a notice of appeal). 7
7
As explained in Baez, if courts deem language in such a motion as
constituting a notice of appeal,
practically any language contained within any type of document that
indicate[s] that [a defendant is] considering filing an appeal would be
sufficient to serve as a notice of appeal. . . . [T]o do so would be
tantamount of dispensing with the necessity of filing any such notice.
Without direction from the Texas Court of Criminal Appeals, [courts
should] not saddle [themselves] with the added responsibility of
exploring every nook and cranny of a record—even in unlikely
places—to seek out language that might be stretched to conceivably
serve as a “notice of appeal.”
235 S.W.3d at 841.
6
Likewise, the San Antonio court of appeals has held that a combined
pauper’s oath and request for appellate counsel, standing alone, does not qualify
as a notice of appeal. See Rivera v. State, 940 S.W.2d 148, 149 (Tex. App.—
San Antonio 1996, no pet.); see also Roberts v. State, 270 S.W.3d 662, 665
(Tex. App.—San Antonio 2008, no pet.) (op. on reh’g) (following Rivera and
holding that a statement of inability to afford counsel was insufficient to serve as
a notice of appeal, even when construed liberally).
Under similar facts, other intermediate courts, including our own, have
reached decisions in accordance with the conclusions in Clark and Rivera. See,
e.g., Currie v. State, No. 09-06-00225-CR, 2006 WL 2506419, at *1 (Tex. App.—
Beaumont Aug. 30, 2006, no pet.) (mem. op., not designated for publication)
(concluding that a pauper’s oath and order appointing counsel on appeal were
insufficient to serve as a notice of appeal and noting that the court of criminal
appeals has held the same); Alejandro v. State, No. 14-06-00539-CR, 2006 WL
2074819, at *1 (Tex. App.—Houston [14th Dist.] July 27, 2006, pet. ref’d) (mem.
op., not designated for publication) (declining to consider a pauper’s oath and a
designation of record on appeal as a timely notice of appeal); 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) (refusing to consider a
“request for the appointment of appellate counsel as the functional equivalent of
7
a notice of appeal”); 8 Rodriguez-Banda v. State, No. 04-96-00762-CR, 1997 WL
136517, at *1 (Tex. App.—San Antonio Mar. 26, 1997, no pet.) (not designated
for publication) (“[N]either an affidavit of indigency nor a request for appointment
of appellate counsel can serve as a notice of appeal . . . .”); Cooper v. State, 917
S.W.2d 474, 477 (Tex. App.—Fort Worth 1996, pet. ref’d) (“We find that the order
appointing counsel . . . does not act as a substitute for a timely filed notice of
appeal.”); Williford v. State, 909 S.W.2d 604, 605 (Tex. App.—Austin 1995, no
pet.).
The court of criminal appeals has also indicated that documents similar to
appellant’s application for appointment of counsel do not perfect an appeal. For
example, in Jones v. State, although the defendant (through his trial counsel) had
filed a postconviction request for appointed appellate counsel within thirty days of
sentencing, the court stated that appellant had not filed a “written notice of
appeal” and instead granted an out-of-time appeal. 98 S.W.3d 700, 702–04
(Tex. Crim. App. 2003). Similarly, fifteen years earlier, that court concluded that
although a defendant had filed a pauper’s oath and request for counsel on the
day he was sentenced, he had not perfected an appeal. See Shute v. State, 744
S.W.2d 96, 97 (Tex. Crim. App. 1988) (affirming a court of appeals’s dismissal of
8
The Jarrels court noted that on the same day that Jarrels had filed the
request for appointment of counsel, he had also filed a motion for new trial. 2001
WL 1301636, at *1. As the court explained, “[a]t that time, [Jarrels] did not know
whether his motion for new trial would be granted, or whether he would appeal
the judgment.” Id.
8
an appeal for want of jurisdiction); see also id. at 100 (Teague, J., dissenting)
(attaching, as an appendix, a pauper’s oath and request for counsel along with
the trial court’s order appointing counsel “ON APPEAL”).
We recognize that a notice of appeal is sufficient when it shows a
defendant’s desire to appeal. See Tex. R. App. P. 25.2(c)(2); Gonzales v. State,
421 S.W.3d 674, 675 (Tex. Crim. App. 2014). But appellant’s application for
counsel did not necessarily show her desire to appeal; instead, it showed only
her desire for the appointment of counsel, from which an appeal, a successful or
unsuccessful motion for new trial, a successful or unsuccessful motion in arrest
of judgment, 9 or perhaps nothing (after consultation with counsel and counsel’s
review of the trial court’s proceedings) may follow. Contrary to appellant’s
contention in oral argument, there may be reasons for requesting appointment of
counsel after sentence has been pronounced other than immediately bringing an
appeal.
Also, we cannot conclude that the trial court’s handwritten reference to an
appeal on the order granting appellant’s application is determinative. This
reference does not necessarily reflect the trial court’s understanding of
appellant’s present intent to appeal; it may, instead, reflect the court’s
acknowledgement that appellant would need counsel if she later decided to
appeal.
9
In the event a defendant prevails in such a motion, an appeal is obviously
unnecessary.
9
Finally, we recognize that in recent years, the court of criminal appeals has
explained that we should liberally construe rules related to the perfection of an
appeal. See Few v. State, 230 S.W.3d 184, 190 (Tex. Crim. App. 2007).
Nonetheless, the court’s cases do not dispense with the requirement of a bona
fide notice of appeal. See id. at 189–90 (noting that the rules “retain the
requirement of notice of appeal” but holding that an unquestioned notice of
appeal was sufficient to appeal the defendant’s conviction although the
defendant filed the notice of appeal under a wrong cause number); see also
Taylor v. State, 424 S.W.3d 39, 41, 44–46 (Tex. Crim. App. 2014) (concluding
that an unquestioned notice of appeal was sufficient to invoke jurisdiction
although it was mistakenly sent to a court of appeals and later forwarded to a trial
court); Gonzales, 421 S.W.3d at 674 (holding that an unquestioned notice of
appeal in one cause number was sufficient to bring appeals in three related
cases). Despite liberal construction of the rules, the court of criminal appeals has
not dispensed with them altogether; it still dismisses appeals when there is no
timely notice of appeal. See Castillo, 369 S.W.3d at 202–03; Shute, 744 S.W.2d
at 97.
For all of these reasons, following the rationale in the cases above, we
cannot conclude that appellant’s application for appointment of counsel qualifies
as a timely notice of appeal. See Tex. R. App. P. 25.2(c)(2), 26.2(a)(1).
Because the record does not contain a timely notice of appeal or a timely motion
for extension of time to file a notice of appeal, we dismiss the appeal for want of
10
jurisdiction. See Tex. R. App. P. 25.2(b), 26.2(a)(1), 26.3(b), 43.2(f); Taylor, 424
S.W.3d at 43; Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
WALKER, J., filed a dissenting opinion.
PUBLISH
DELIVERED: October 2, 2014
11