Ronald Dockery v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-406-CR

RONALD DOCKERY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 1998-266-C

O P I N I O N

In an unpublished opinion dated August 22, 2001, we sustained Ronald Dockery s claim that the trial court erred by refusing to hold a hearing on his timely-filed motion for new trial which presented an ineffective assistance of counsel claim not determinable from the record. We remanded the cause to the trial court for a hearing on the motion for new trial. At the State s urging however, the trial court refused to rule on Dockery s motion for new trial, believing that our mandate was improperly issued. Dockery s sole issue challenges the trial court s refusal to rule on his timely-filed motion for new trial.

BACKGROUND

In our August 22 opinion, we held that Dockery is entitled to an out-of-time hearing on the ineffective assistance of counsel allegations contained in his motion for new trial. See Dockery v. State, No. 10-00-11-CR, slip op. at 3 (Tex. App. Waco Aug. 22, 2001, no pet.) (not designated for publication). Citing our prior decision in Mendoza v. State, we remanded this cause to the trial court for a hearing on the motion. Id. (citing Mendoza, 935 S.W.2d 501, 504 (Tex. App. Waco 1996, no pet.). Consistent with a timetable we established in Mendoza, we ordered that a new appellate timetable would begin forty-five days after the date of the opinion if the trial court had not by that time heard the motion or ruled on it by written order. See Mendoza, 935 S.W.2d at 504. Otherwise, we ordered that the date of the court s written order would mark the commencement of the timetable should either party seek to pursue an appeal. Id. We did not issue a mandate on August 22.

Dockery s retained counsel filed a motion to withdraw in the trial court on August 31. She asked the trial court to appoint counsel to represent Dockery at the hearing on his motion for new trial and in any subsequent appellate proceedings.

The State filed a motion for rehearing in this Court on September 5 arguing that the trial court had no jurisdiction to act on Dockery s motion for new trial until our mandate issued. The State requested that we abate Dockery s case to vest the trial court with jurisdiction to hear Dockery s motion, modify our August 22 timetable so that the timetable for the trial court s review of the motion (and the corresponding appellate timetable) would run from the date of the mandate rather than the date of the opinion, or grant such other and further relief to which she may be entitled.

Although we nominally denied the State s motion for rehearing on September 26, we in fact treated the State s prayer for general relief as a request for early issuance of the mandate. See Tex. R. App. P. 18.1(c). We issued the mandate on that same date.

The State filed a pleading in the trial court on October 10 contending that the trial court lacked jurisdiction to rule on Dockery s motion for new trial and counsel s motion to withdraw because the mandate this Court issued on September 26 is void. The trial court heard the matter on October 12. The court signed an order on October 29 sustaining the State s objection and essentially denying Dockery s motion for new trial and counsel s motion to withdraw.

Dockery s retained counsel filed a motion to withdraw and for appointment of counsel in this Court on November 5. Counsel concurrently filed a Motion to Recall Mandate and Request for New Mandate. By an unpublished order dated December 19, we informed the parties that we were treating Dockery s motion to recall the mandate as a notice of appeal. We docketed the notice in this cause.

JURISDICTION

In the December 19 order, we held that Dockery s motion to recall the mandate adequately expresses his desire to appeal. We applied Rule of Appellate Procedure 2 to excuse him from the requirement that a criminal notice of appeal be filed with the trial court clerk. The State challenges both of these determinations in a motion to dismiss and in its brief.

Rule of Appellate Procedure 25.2(b) reads in pertinent part:

(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 . . . .

Tex. R. App. P. 25.2(b).

A written pleading denominated as something other than a notice of appeal can suffice to invoke an appellate court s jurisdiction. See Sklar v. State, 764 S.W.2d 778, 781 (Tex. Crim. App. 1987) (appeal bond); Palma v. State, No. 13-00-606-CR, slip op. at ___, 2002 Tex. App. LEXIS 2453, at *3-7 (Tex. App. Corpus Christi Apr. 4, 2002, no pet. h.) (letter to trial court inquiring whether defendant had appellate counsel and/or an appeal bond, and If not, then why? ); Cantu v. State, 46 S.W.3d 421, 423 (Tex. App. Corpus Christi 2001, no pet.) (inmate communication form); Buchanan v. State, 881 S.W.2d 376, 377-78 (Tex. App. Houston [1st Dist.] 1994) (motion for appellate record), rev d on other grounds, 911 S.W.2d 11 (Tex. Crim. App. 1995); Massey v. State, 759 S.W.2d 18, 19 (Tex. App. Texarkana 1988, order) (motion for appointment of counsel and appellate record); see also Cooper v. State, 917 S.W.2d 474, 477 (Tex. App. Fort Worth 1996, pet. ref d) (request for appellate record indicates a desire to appeal but was untimely); contra Ashorn v. State, No. 01-01-904-CR, slip op. at 6, 2002 Tex. App. LEXIS 3162, at *7-8 (Tex. App. Houston [1st Dist.] May 2, 2002, no pet. h.) (appeal bond); Rivera v. State, 940 S.W.2d 148, 149 (Tex. App. San Antonio 1996, no pet.) (indigence affidavit and request for appellate counsel not independent notice of appeal ); Williford v. State, 909 S.W.2d 604, 605 (Tex. App. Austin 1995, no pet.) (same). To suffice, the pleading at issue must adequately express[ ] [the appellant s] desire to appeal. Sklar, 764 S.W.2d at 781; see also Tex. R. App. P. 25.2(b)(2) (notice must show[ ] the party s desire to appeal ).

Dockery s motion to recall our September 26 mandate states in part, Appellant respectfully urges the Court to take the steps necessary to insure that Appellant gets his day in court to decide the issues raised in his motion for new trial. We continue to believe that this statement adequately expresse[s] [his] desire to appeal. See id.

Regarding appellate rule 2, the Court of Criminal Appeals has said that this escape valve cannot be used to suspend or enlarge the time limits which regulate the orderly and timely process of moving a case from trial to finality of conviction. Oldham v. State, 977 S.W.2d 354, 359-60 (Tex. Crim. App. 1998) (emphasis added).

Applying Rule 2 to suspend the requirement that a notice of appeal be filed with the trial court clerk does not affect the time limits specified by Rule of Appellate Procedure 26.2. In our view, the unusual procedural circumstances presented in Dockery s case provide sufficient good cause to suspend the operation of Rule 25.2(b)(1). Contra Douglas v. State, 987 S.W.2d 605, 606 (Tex. App. Houston [1st Dist.] 1999, no pet.).

Accordingly, we continue to believe that Dockery s motion to recall the mandate sufficiently invoked our jurisdiction to review the trial court s refusal to rule on his motion for new trial. Thus, we deny the State s motion to dismiss this appeal.

REFUSAL TO HEAR MOTION FOR NEW TRIAL

Dockery contends in his sole issue that the trial court erred by ignoring this Court s mandate and refusing to hear his motion for new trial. The State responds that the mandate was void because it was issued too early and did not vest the trial court with jurisdiction to hear the motion.

Rule of Appellate Procedure 18.1(c) permits this Court to issue a mandate earlier than ordinarily provided if the parties so agree, or for good cause on the motion of a party. Tex. R. App. P. 18.1(c).

In our August 22 opinion, we directed the trial court to hold a hearing on Dockery s motion for new trial within forty-five days after our opinion (i.e., by Monday, October 8). The primary relief sought in the State s motion for rehearing was that we take some action to restore jurisdiction to the trial court to hold a timely hearing [on Dockery s motion for new trial]. The State believed that an abatement was the most expedient way to accomplish this. The State asked in the alternative that we extend the time for the hearing until a reasonable time after . . . issu[ance of] the mandate.

Nevertheless, we rejected both of these alternatives. Instead, we issued the mandate on September 26 pursuant to the prayer for general relief in the State s motion for rehearing, which we treated as a motion for early issuance of the mandate. See id. This gave the trial court twelve days to hold the hearing. //

The trial court failed to comply with our prior opinion. Our September 26 mandate invested the court with jurisdiction to do so. Thus, Dockery s sole issue is meritorious.

Accordingly, we remand this cause to the trial court and direct that court to conduct a hearing on Dockery s motion for new trial. See Mendoza v. State, 935 S.W.2d 501, 504 (Tex. App. Waco 1996, no pet.). If the trial court has not earlier ruled on the motion for new trial by written order, the appellate timetables for either party to pursue a new appeal shall commence on the thirtieth day after our mandate issues. If the trial court signs its order sooner, the appellate timetables shall commence on the date of signing.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Remanded

Opinion delivered and filed May 15, 2002

Do not publish

[CR25]