Gomez v. State, 13-88-433-CR

• Court: Court of Appeals of Texas
• Writing for the Court: UTTER; SEERDEN, J., files a dissenting opinion in which DORSEY; SEERDEN; DORSEY
• Citation: 763 S.W.2d 583
• Parties: Arturo Perez GOMEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Docket Number: No. 13-88-433-CR,13-88-433-CR
• Decision Date: 30 December 1988

Page 583

763 S.W.2d 583 Arturo Perez GOMEZ, Jr., Appellant,
v.
The STATE of Texas, Appellee. No. 13-88-433-CR. Court of Appeals of Texas,
Corpus Christi. Dec. 30, 1988.

Randy Mack, Bonilla & Berlanga, Inc., Corpus Christi, for appellant.

Jose Aliseda, Jr., Co. Atty., Beeville, for appellee.

Before the court en banc.

OPINION

UTTER, Justice.

Appellant has filed in this Court a motion for extension of time to file notice of appeal and a motion for extension of time to file the transcript and statement of facts. We deny the motions and dismiss the appeal for want of jurisdiction.

Appellant was convicted of public intoxication and fined $200.00. Although appellant has not tendered an appellate transcript in this case, through his motions and other documents filed, it is apparent that the judgment was entered on May 24, 1988. Appellant filed a motion for new trial on June 16, 1988.

Pursuant to Tex.R.App.P. 41(b)(1), notice of appeal had to be filed within 90 days of the judgment, or by August 22, 1988. No notice of appeal was filed by that date.

On September 7, 1988, appellant filed a notice of appeal. This date was sixteen days after the original deadline for the filing of the notice of appeal. Appellant thus failed to comply with the first procedural step provided in Rule 41(b)(2) for extending the time to give notice of appeal.

Tex.R.App.P. 41(b)(2) provides that an extension of time may be granted by the court of appeals if such notice is (1) filed within fifteen days after the last day allowed and (2) within the same period a motion is filed in the court of appeals reasonably explaining the need for such extension.

On October 7, 1988, appellant filed his motions in this Court to extend the deadlines for notice of appeal and the appellate record. Appellant's motion to extend the time for filing notice of appeal under Rule 41(b)(2) was more than 30 days late. Accordingly, appellant also failed to comply with the second procedural step to gain an extension of time.

Page 584

Appellant's counsel explained in his motions that he had miscalculated the date for appeal. He explained:

"Pursuant to Rule 329b(c) of the Texas Rules of Civil Procedure, Randy Mack understood that the Motion for New Trial was not overruled as a matter of law until seventy-five days after the judgment was signed. Randy Mack believed that there was a thirty-day period after the Motion for New Trial was overruled in which to appeal. The Motion for New Trial was overruled as a matter of law on August 8, 1988. Therefore, Randy Mack thought that appellant had until September 7, 1988, in which to perfect his appeal."

The term "reasonably explaining" means any plausible statement of circumstances indicating that the failure to file within the appropriate deadline was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex.1977). In Joslin v. Joslin, 636 S.W.2d 519 (Tex.App.--Corpus Christi 1982, no writ), we held that an attorney's failure to familiarize herself with the basic rules of appellate practice constituted negligence which could not provide the basis of a reasonable explanation.

Appellant's counsel, in this case, admits that he did not know the rules for perfecting a criminal appeal. Accordingly, his explanation for filing the notice of appeal late is not reasonable. The appellant's motion to extend the time for filing the notice of appeal is denied and the appellant's motion for extension of time to file the appellate record is dismissed.

We note that in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the Supreme Court held that a criminal defendant has the right to the effective assistance of counsel on appeal, and that a State may not extinguish the defendant's right to appeal because another right of the defendant--the right to effective assistance of counsel--has been violated. Evitts, 105 S.Ct. at 838. In so holding, however, the Court stated that a State may dismiss an appeal when an incompetent attorney has violated local rules, if such action does not intrude upon the client's due process rights. The Court also indicated that a post-conviction attack on the trial judgment would be an appropriate remedy for a frustrated right of appeal. Evitts, 105 S.Ct. at 838.

Although not confined for a felony conviction, presumably the appellant can raise the matter of counsel's effectiveness through post-conviction writ. See Ex parte Renier, 734 S.W.2d 349 (Tex.Crim.App.1987); Ex parte Jordan, 659 S.W.2d 827 (Tex.Crim.App.1983).

In the present case, we hold only that counsel failed to comply with the time provisions for adequately perfecting the appeal. We do not address whether counsel provided effective representation on appeal, see Ward v. State, 740 S.W.2d 794, 799 (Tex.Crim.App.1987), as that issue has not been raised.

Where a written notice of appeal is not timely filed, a court of appeals is without jurisdiction to entertain the appeal. Shute v. State, 744 S.W.2d 96 (Tex.Crim.App.1988). See United States v. Avendano-Camacho, 786 F.2d 1392 (9th Cir.1986).

The appeal is DISMISSED FOR WANT OF JURISDICTION.

SEERDEN, J., files a dissenting opinion in which DORSEY, J., joins.

SEERDEN, Justice, dissenting.

I dissent. The primary purpose of Texas appellate courts is to decide appeals from trial courts and to cure errors that have deprived parties of a fair trial. See Jiles v. State, 751 S.W.2d 620 (Tex.App.--Houston [1st Dist.] 1988). The majority decision allows this Court, in this case, to avoid performing the job for which it was created. Nothing in the rules of appellate procedure or the case law of Texas compels this result.

Tex.R.App.P. 83, directs that an appeal shall not be dismissed for defects or irregularities in appellate procedure, either of form or substance, without...