Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist.

• Decision Date: 05 April 1989
• Docket Number: No. 70000,70000
• Parties: Frank RODRIGUEZ, Jr., Relator, v. COURT OF APPEALS, EIGHTH SUPREME JUDICIAL DISTRICT, Respondent.
• Court: Texas Court of Criminal Appeals

Page 554

769 S.W.2d 554

Frank RODRIGUEZ, Jr., Relator, v. COURT OF APPEALS, EIGHTH SUPREME JUDICIAL DISTRICT, Respondent.

No. 70000.

Court of Criminal Appeals of Texas,

En Banc.

April 5, 1989.

Rehearing Denied May 10, 1989.

Arvel (Rod) Ponton, III, El Paso, for relator.

Max N. Osborn, C.J., and Charles R. Schulte, Larry L. Fuller, and Jerry Woodard, JJ., of the Eighth Court of Appeals, El Paso, for respondents, Steve W. Simmons, Dist. Atty. and Robert Dinsmoore, Asst. Dist. Atty., Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Relator seeks to invoke this Court's original jurisdiction to issue writs of mandamus pursuant to Article 5, § 5 of the Texas Constitution.

Relator was convicted by a jury of felony theft on January 14, 1987, and the jury assessed punishment at five years probation and a $5,000 fine. Thereafter, on February 13, 1987, relator timely filed a motion for new trial alleging newly discovered evidence. This motion was overruled by operation of law on March 27, 1987. Relator timely filed notice of appeal on April 13, 1987, and perfected his appeal. Relator failed, however, to file the transcript and statement of facts in the Court of Appeals on or before April 24, 1987, one hundred days after sentencing, as required by Rule 54(b) of the Texas Rules of Appellate Procedure.

The Rules of Appellate Procedure provide that "an extension of time may be granted by the Court of Appeals if a motion reasonably explaining the need therefor is filed by the appellant not later than fifteen days after the last date for filing the record". Tex.R.App.Pro. 54(c). Thus, counsel for relator had until May 9, 1987, to request an extension of time for filing the statement of facts.

The record reveals, however, that a letter dated May 7, 1987, was written to relator's attorney, Rod Ponton, over the signature of a deputy clerk of the respondent Court. That letter informed counsel that the record had been due on April 24, 1987, but that an extension of time was possible if requested timely and appropriately drafted. The letter concluded:

The record has not been received by this Court and no motion to extend the time for filing the same has been filed. The Court will dismiss the attempted appeal on its own motion ten days after the fifteen-day period above provided expires on May 9, 1987, unless the record or a timely motion to extend time for filing the same is received. (emphasis added).

Apparently interpreting the letter to authorize the late filing of a motion for extension, ¹ relator's counsel filed a Motion to Extend Time to File Statement of Facts on May 19, 1987. This day was, however, the last day the Court of Appeals apparently intended to authorize counsel to file the record if no motion for extension had been filed by May 19, 1987. The next day, May 20, 1987, respondent entered a "Judgment" which ordered relator's "attempted appeal" dismissed from the Court of Appeals' docket because neither the record nor a motion for extension of time had been timely filed with the Court. Relator then filed a motion for rehearing of the judgment of the Court of Appeals dismissing his appeal. This motion was denied by the Court of Appeals on June 17, 1987. Relator did not seek discretionary review by this Court of the Court of Appeals' decision.

Ponton then filed an "Original Petition for Writ of Habeas Corpus" on relator's behalf in the 120th Judicial District Court of El Paso County on August 21, 1987, praying that his appeal be abated to April 13, 1987, the date relator filed notice of appeal. In this application, relator alleged he was illegally restrained by virtue of his conviction, and he invoked certain rules of the Texas Rules of Appellate Procedure against the Court of Appeals' actions and omissions. Relator further asserted:

Applicant is entitled to one appeal as of right, as mandated by the Supreme Court of the United States. Douglas v. California, 372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811] (1963). Further, the Sixth and Fourteenth Amendments of the United States Constitution mandate that Applicant receive effective assistance of counsel on his first appeal as of right, and that, should an appeal be dismissed for failure to comply with a State Appellate Rule, such appeal must be remanded to the State Court of Appeals for a full and fair hearing of the merits of the appeal. Evitts v. Lucy [Lucey ], 469 U.S. 387 [105 S.Ct. 830, 83 L.Ed.2d 821] (1986).

On September 10, 1987, the district court convened a hearing on the matter at which the State appeared through counsel and evidence was taken. In support of his application, relator filed a post-hearing brief citing this Court's opinion in Ex parte Renier, 734 S.W.2d 349 (Tex.Cr.App.1987), and stated he was seeking an out-of-time appeal "so that he may have the appeal to which he is entitled as of right." Thus, relator based his prayer for an out-of-time appeal on the theory that the dismissal of his initial appeal was the result of ineffective assistance of counsel.

The district judge repeatedly expressed his belief that he could not effectively order the respondent Court of Appeals to do anything. Nevertheless, the district court, apparently taken with the equity of the situation as to relator and pursuant to Article 5, § 8 of the Texas Constitution, granted relator the relief prayed for in the application, to wit: an out-of-time appeal. ² Relator then filed in the Court of Appeals a new notice of appeal, a new motion for extension of time to file the transcript, and a designation of the statement of facts. In response, the State filed a "Motion To Dismiss Attempted Appeal". Not surprisingly, the respondent Court of Appeals refused to proceed with an appeal for relator. The Court of Appeals held that the district court did not have jurisdiction to grant an out-of-time appeal or to grant the filing of the motion to extend time to file the transcript. The Court of Appeals stated the district court did not have jurisdiction because the writ of habeas corpus was returnable to this Court pursuant to Art. 11.07, V.A.C.C.P., and Rule 213, Texas Rules of Appellate Procedure. The Court of Appeals therefore instructed the clerk of the court not to file the motion for extension of time and refused to file the statement of facts.

Relator then filed this petition for what he denominates a Writ of Mandamus directly in this Court. Relator requests this Court to compel the Court of Appeals to comply with the district court's order granting him an out-of-time appeal. In this petition, relator contends that he has no other remedy at law and that the grant of habeas corpus relief by the district court was proper under Art. 5, § 8, of the Texas Constitution and our recent decision in Renier, supra. We note that the conflict appears to be between the respondent Court of Appeals and relator's counsel, the result being that relator's constitutional right to appeal has been lost in the shuffle.

In Renier, supra, we held that Art. 11.07, supra, applies only where a defendant is "confined" pursuant to a final felony conviction. Id. at 351. The applicant in Renier, supra, was convicted of felony theft and placed on probation. Where a habeas corpus petitioner has been granted probation and it has not been revoked, the defendant is not confined and the conviction is not final for purposes of Art. 11.07, supra. Renier, supra; Ex parte Twyman, 716 S.W.2d 951 (Tex.Cr.App.1986); Ex parte Payne, 618 S.W.2d 380 (Tex.Cr.App.1981). Thus, applicant in this cause, having been placed on probation which has not been revoked, cannot seek habeas corpus relief from this Court under Art. 11.07, supra.

The Renier applicant was not without recourse, however. Applying the rationale of Ex parte Crosley, 548 S.W.2d 409 (Tex.Cr.App.1977), we further held that Article 5, § 8 of the Texas Constitution, and Art. 11.05 and 11.09, V.A.C.C.P., "combine to provide a procedure for seeking, and jurisdiction, power and authority in district courts under Article 5, § 8, to grant, relief and, failing there, for appeal to a court of appeals, subject to discretionary review by this Court." Renier, supra, at 353. The applicant could therefore invoke the original jurisdiction of the district court via habeas corpus application. See Id. Thus, the Court of Appeals erred in stating that "any post-conviction habeas corpus had to be returnable to the Texas Court of Criminal Appeals" and in holding the district court had no jurisdiction to grant an out-of-time appeal. Rodriguez v. State, 743 S.W.2d 683 (Tex.App.--El Paso 1987), no pet.

The Eighth Court of Appeals contends that Renier, supra, does not apply to relator's cause in that Renier, supra, dealt with the relationship between habeas corpus jurisdiction under Art. 11.07, supra, and other general habeas corpus jurisdiction. The Court of Appeals perceives the issue in this case as a conflict between appellate relief and habeas corpus relief and argues that relator cannot relitigate the adverse procedural ruling of the Court of Appeals through a writ of habeas corpus. The gist of the Court of Appeals' argument is that relator should have sought discretionary review from this Court prior to filing the writ of habeas corpus with the district court, and having failed to do that, relator is barred from using the writ as a substitute for an appeal. Although it is true that habeas corpus should not be used as a substitute for an appeal, Ex parte Clore, 690 S.W.2d 899 (Tex.Cr.App.1985) reh'g denied, if we sustained the position taken by the Court of Appeals we would effectively abolish the district court's habeas corpus jurisdiction under Art. 5, § 8 of the Texas Constitution.

In State ex rel. Rodriguez v. Onion, 741 S.W.2d 433 (Tex.Cr.App.1987), Presiding Judge McCormick, writing for the majority, stated that Art. V, § 8 of the Texas Constitution and Art. 11.05, V.A.C.C.P., conferred general jurisdiction in ...