Michael Thomas Russell v. The State of Texas--Appeal from County Crim Court No 7 of Dallas County

WITHDRAWN 1/3/2001

IN THE

TENTH COURT OF APPEALS

No. 10-00-152-CR

MICHAEL THOMAS RUSSELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Criminal Court No. 7

Dallas County, Texas

Trial Court # MA99-40287-H

DISSENTING OPINION

Michael Russell has requested permission to amend his notice of appeal. He relies upon the plain language of Rule 25.2(d) of the Texas Rules of Appellate Procedure as his authority for his request. Rule 25.2, in its entirety, provides:

25.2. Criminal Cases

(a) Perfection of Appeal. In a criminal case, appeal is perfected by timely filing a notice of appeal. In a death-penalty case, however, it is unnecessary to file a notice of appeal.

(b) Form and Sufficiency of Notice.

(1) Notice must be given in writing and filed with the trial court clerk.

(2)Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01.

(3)But if the appeal is from a judgment rendered on the defendant's plea of guilty or nolo contendere under Code of Criminal Procedure article 1.15, and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must:

(A)specify that the appeal is for a jurisdictional defect;

(B)specify that the substance of the appeal was raised by written motion and ruled on before trial; or

(C)state that the trial court granted permission to appeal.

(c)Clerk's Duties. The trial court clerk must note on the copies of the notice of appeal the case number and the date when the notice was filed. The clerk must then immediately send one copy to the clerk of the appropriate court of appeals and one copy to the State's attorney.

(d)Amending the Notice. An amended notice of appeal correcting a defect or omission in an earlier filed notice may be filed in the appellate court at any time before the appellant's brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice. After the appellant's brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe.

(e)Effect of Appeal. Once the record has been filed in the appellate court, all further proceedings in the trial court except as provided otherwise by law or by these rules will be suspended until the trial court receives the appellate-court mandate.

Tex. R. App. P. 25.2.

Rather than follow the plain language of this Rule, the majority denies Russell s request to amend his notice and dismisses his appeal for want of jurisdiction on the basis of the Court of Criminal Appeals decision in State v. Riewe, 13 S.W.3d 408 (Tex. Crim. App. 2000). I disagree with the majority s reliance on Riewe because I have concluded that it does not apply to a defendant s attempt to amend his notice of appeal under Rule 25.2(d). See id.; Tex. R. App. P. 25.2(d).

Riewe involves a State s appeal under article 44.01 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. Pamph. 2000); Riewe, 13 S.W.3d at 409. The time limit for the State s notice of appeal is established by the statutory provisions that confer the right to appeal on the State. Tex. Code Crim. Proc. Ann. art. 44.01(d); State v. Muller, 829 S.W.2d 805 (Tex. Crim. App. 1992). In my view, the decision that the Rules of Appellate Procedure may not be used to modify the statutory time limit imposed on the State when it seeks to appeal a trial court s ruling has nothing to do with the question of whether those Rules may be used to allow a defendant to amend a notice of appeal whose contents and time requirements are set by those same Rules. // Tex. R. App. P. 25.2, 26.2. To the extent Riewe may discuss whether a defendant may amend his notice of appeal, that discussion is dicta. See Lester v. First American Bank, 866 S.W.2d 361, 363 (Tex. App. Waco 1993, writ denied).

Furthermore, the result that the majority reaches is counter to the goal of judicial efficiency. Rather than disposing of Russell s appeal in one case, this decision ensures that it will take three proceedings and four courts to do so. This appeal is the first. In the second proceeding, Russell will succeed on his habeas corpus application seeking an out-of-time appeal, which first must be filed in the trial court and then in the Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2000); see Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). His successful habeas corpus application will result in the filing of the third proceeding, the actual out-of-time appeal, in all probability in the Dallas Court of Appeals.

We could avoid this litigation-multiplying effect by harmonizing the application of the Rules of Appellate Procedure in civil and criminal proceedings. In other contexts, the Court of Criminal Appeals has specifically looked to civil cases for guidance on appellate matters. See, e.g., Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) ( Adoption of this complete standard allows us to remain true to one of the stated goals of Clewis, harmonization, when appropriate, of civil and criminal jurisprudence, and it recognizes the State's burden at a criminal trial is proof beyond a reasonable doubt. ) (referring to Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)); Awadelkariem v. State, 974 S.W.2d 721, 726-27 (Tex. Crim. App. 1998). Under the Texas Supreme Court s interpretation of the Texas Rules of Appellate Procedure, an appellant s bona fide attempt to invoke the jurisdiction of the court of appeals is sufficient to establish the appellate court s jurisdiction over the cause. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997); Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). The same reasoning should be applied in criminal appeals.

Here, Russell filed a general notice of appeal. He has requested leave to file an amended notice of appeal. Even though his request comes after he has filed his brief, we are still authorized to allow him the opportunity to amend his notice of appeal. Tex. R. App. P. 25.2(d) ( After the appellant's brief is filed, the notice may be amended only on leave of the appellate court and on such terms as the court may prescribe. ). We should exercise our authority under Rule 25.2(d) and grant Russell s request for leave to amend his notice.

Rule 25.2(d) was adopted less than two years ago. Id. It appropriately restored the authority of a court of appeals to allow a defendant time to correct an otherwise timely notice of appeal. // We should follow the Rules of Appellate Procedure in this case, not Riewe, and allow Russell the opportunity to amend his notice of appeal. The majority s application of Riewe to a defendant s appeal creates a split between criminal and civil jurisprudence without a good reason for doing so. Awadelkariem, 974 S.W.2d at 726. In fact, this result flies in the face of a rule which, in the natural application of its plain language, would allow for the harmonization of the two procedures and which has effectively restored the authority of the court of appeals to allow a notice of appeal to be corrected after the expiration of the time for filing the notice. Tex. R. App. P. 25.2(d). Because the majority takes this unwise course under the authority of an inapplicable opinion, I respectfully dissent.

BILL VANCE

Justice

Dissenting opinion delivered and filed November 8, 2000

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