Andrew Anderson v. State

Dismissed and Opinion Filed on March 17, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01492-CR
ANDREW ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-52721-R
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Opinion by Justice Partida-Kipness
Andrew Anderson appeals his conviction for aggravated assault with a deadly
weapon. On July 25, 2019, appellant pleaded guilty under a plea bargain agreement
with the State and was placed on eight years of deferred adjudication. Shortly
thereafter, the State filed a motion to proceed to adjudication alleging appellant
violated a condition of his supervision. Appellant entered an open plea of true to the
allegation in the motion. On October 7, 2019, the trial court found the allegation
true, found appellant guilty, and assessed punishment at eight years. The trial court
certified, and the record supports, that appellant has the right to appeal.
On December 2, 2019, appellant filed his notice of appeal in the trial court.
After the record was filed, we requested jurisdictional letter briefs from appellant
and the State regarding the timeliness of the appeal. After reviewing those and the
applicable law, we dismiss this appeal.
A defendant perfects an appeal by filing with the trial court clerk, within thirty
days after the date sentence was imposed, or within ninety days after sentencing if
the defendant timely filed a motion for a new trial, a written notice of appeal showing
his desire to appeal. See TEX. R. APP. P. 25.2(b), (c), 26.2(a), (b). A document
received “within ten days after the filing deadline is considered timely filed if,” as
relevant here, “it was sent to the proper clerk by United States Postal Service or a
commercial delivery service.” See TEX. R. APP. P. 9.2(b)(1)(A) (emphasis added).
Courts have interpreted the phrase “proper clerk” liberally to include “agents of the
district clerk” and the clerk of the correct court of appeals. See Taylor v. State, 424
S.W.3d 39, 45‒46 (Tex. Crim. App. 2014); Moore v. State, 840 S.W.2d 439, 441
(Tex. Crim. App. 1992). Mailing a notice of appeal to one’s attorney, to the trial
court, or to the trial court judge does not meet the requirements of the rule. Turner
v. State, 529 S.W.3d 157, 159 (Tex. App.—Texarkana 2017, no pet.) (holding
prisoner mailbox rule did not apply when appellant delivered envelope to prison
authorities for forwarding to trial judge); Bowen v. State, 05-19-01530-CR, 2020
WL 1042646, at *1 (Tex. App.—Dallas Mar. 3, 2020, no pet. h.) (mem. op., not
designated for publication) (concluding mailbox rule did not apply when notice was
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mailed to trial court judge); Rhodes v. State, 05-16-00921-CR, 2017 WL 3587101,
at *2 (Tex. App.—Dallas Aug. 21, 2017, no pet.) (mem. op., not designated for
publication) (mailing notice of appeal to third-party agent for redelivery to trial court
clerk does not comply with rule). In the absence of a timely filed notice of appeal,
we must dismiss the appeal for want of jurisdiction. See Castillo v. Sate, 369 S.W.3d
196, 198 (Tex. Crim. App. 2012).
Here, the trial court adjudicated appellant’s guilt and pronounced sentence in
on October 7, 2019. Because appellant did not file a motion for new trial, his notice
of appeal was due on November 6, 2019. See TEX. R. APP. P. 26.2(a)(1). Appellant’s
undated notice of appeal, post-marked November 4, 2019, was mailed to “Dallas
County Court #265.” It was then forwarded to the district clerk who file stamped it
on December 2, 2019. Because the notice was not sent to the proper clerk, appellant
cannot avail himself of the ten-day grace period provided by the mailbox rule. See
id. 9.2(b); see also Turner, 529 S.W.3d at 159. As a result, appellant’s notice of
appeal is untimely, and we lack jurisdiction over this appeal. See Castillo, 369
S.W.3d at 202.
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We dismiss this appeal for want of jurisdiction. 1
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
1
Appellant is not without a remedy. He may seek an out-of-time appeal under article 11.07 of the code
of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANDREW ANDERSON, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-19-01492-CR V. Trial Court Cause No. F19-52721-R.
Opinion delivered by Justice Partida-
THE STATE OF TEXAS, Appellee Kipness, Justices Nowell and Evans
participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 17th day of March, 2020.