Opinion
NO. PD-0279-20
06-30-2021
Andrew ANDERSON, Appellant v. The STATE of Texas
Christian T. Souza, Dallas, for Appellant. Marcella Paige Williams, for State.
Christian T. Souza, Dallas, for Appellant.
Marcella Paige Williams, for State.
OPINION
McClure, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, and Slaughter, JJ., joined.
Is an incarcerated defendant entitled to the 10-day grace period for filing a notice of appeal when he omitted the words "district clerk" from the envelope he used to send his notice of appeal? In this case, no. Because Appellant's notice of appeal does not satisfy the mailbox rule or the prisoner mailbox rule, the notice was untimely. Without timely notice of appeal, the court of appeals properly dismissed for want of jurisdiction.
PROCEDURAL HISTORY
Pursuant to a plea bargain, Appellant pleaded guilty to the offense of aggravated assault with a deadly weapon and was placed on eight years of deferred adjudication. On October 7, 2019, following the State's filing of a motion to proceed to adjudication, 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 five years’ imprisonment. The trial court certified that Appellant has the right to appeal.
Because Appellant did not file a motion for new trial, his notice of appeal deadline was November 6, 2019. Appellant mailed a letter from jail requesting an appeal. Although the letter was not dated, the envelope was postmarked November 4, 2019. The envelope was not addressed to the clerk, but instead, it was addressed to the convicting court; specifically: "Dallas County Court #265 133 N Riverfront blvd. Dallas Tx 75207 [sic]." The letter was not filed by the district clerk until December 2, 2019.
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) ). In the instant case, the Fifth Court of Appeals dismissed for lack of jurisdiction because the notice of appeal was due on November 6, 2019, but was not file-stamped by the clerk until December 2, 2019.
The intermediate court also held that Appellant was not entitled to the 10-day grace period provided by Rule 9.2 of the Texas Rules of Appellate Procedure, colloquially known as the "mailbox rule." This rule states that, a document received "within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by United States Postal Service or a commercial delivery service." TEX. R. APP. P. 9.2(b)(1)(A) )(emphasis added). The court of appeals recognized that, although "proper clerk" is interpreted liberally , and includes an agent of the district clerk or the clerk of the correct court of appeals, this letter was not sent to a clerk or an agent of the clerk, it was instead sent to Dallas County Court #265. Because Appellant omitted the words "district clerk" or "clerk" from the address, the letter did not find its way to the district clerk until after the notice of appeal deadline. Therefore, the court of appeals held that Appellant's notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.
See Taylor v. State , 424 S.W.3d 39 (Tex. Crim. App. 2014) (holding that because the address to which appellant sent his notice of appeal was "sufficiently specific" for the document to be received in the proper place at the proper time, the notice of appeal was properly filed for purposes of the mailbox rule); Moore v. State , 840 S.W.2d 439 (Tex. Crim. App. 1992) (holding an envelope addressed to "Bond Forfeiture Clerk" is sufficient even though it did not specify district clerk or county clerk; therefore, the mailbox rule applied because the document showed who it was intended for and minor imperfections in the address should not deprive a prisoner of the grace period).
ANALYSIS
The Mailbox Rule and the Prisoner Mailbox Rule
We granted review to determine whether an incarcerated defendant is entitled to the 10-day grace period for filing a notice of appeal if he omitted the words "district clerk" from the envelope he used to send his notice of appeal. Appellant contends that the court of appeals read Rule 9.2(b)(1)(A) too strictly, that the "proper clerk" language should be construed liberally, and that minor imperfections in the address should not deprive a pro se prisoner of the benefit of the mailbox rule, much like this Court's holding in Moore v. State , 840 S.W.2d 439 (Tex. Crim. App. 1992).
In Moore , the appellant filed a motion to appeal a final judgment upon forfeiture of an appearance bond for which Moore was the surety. Moore addressed the envelope to "Bond Forfeiture Clerk" instead of to the district clerk. This Court held that once Appellant's cost bond arrived in the receiving department of the Frank Crowley Courts Building, it was within the effective custody or control of the district clerk. Moore , 840 S.W.2d at 441. Therefore, we held the envelope was "sufficiently specific" even though it did not specify the district clerk or the county clerk because the envelope showed who the document was intended for. Id. at 440.
In this case, Appellant contends that omitting the words "District Clerk" was a minor imperfection that would not prevent the chief clerk in the trial court from receiving the notice of appeal within the grace period. Appellant argues that he "generally" sent his notice to the district clerk and the face of the document states the court and cause number. Therefore, like Moore , he was entitled to the grace period to file notice of appeal.
Appellant's reliance on Moore is misplaced under both the mailbox rule ( TEX. R. APP. P. 9.2(b) ) and the equitable prisoner mailbox rule. Under the prisoner mailbox rule, the pleadings of pro se inmates are deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk. Taylor v. State , 424 S.W.3d 39, 44 (Tex. Crim. App. 2014). However, this Court has held that the prisoner mailbox rule is still subject to the requirements of Rule 9.2(b). See Campbell v. State , 320 S.W.3d 338, 342 (Tex. Crim. App. 2010).
Appellant's argument on appeal, and in the PDR, relies exclusively on the "mailbox rule" of 9.2(b)(1), which gives an additional ten days to anyone who files pleadings by mail. Although Appellant does not raise the prisoner mailbox rule, we will consider and discuss it.
Rule 9.2(b) has three requirements: (i) the notice was sent to the proper clerk by United States Postal Service or a commercial delivery service; (ii) the notice was placed in an envelope or wrapper properly addressed and stamped; and (iii) the notice was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing.
(i) Requirement One: "Proper Clerk"
In Moore , the Court held that an address is sufficient as long as it is generally addressed to the clerk. Moore , 840 S.W.2d at 440. Here, Appellant's notice was not "generally" addressed to the clerk. In fact, it was not addressed to the clerk at all, it was addressed to the trial court. Therefore, unlike in Moore , Appellant did not send his notice to the "proper clerk," much less any "clerk." Nor was Appellant's envelope addressed to an agent of the clerk. In Moore , this Court reasoned that "an employee who works in the [building's] receiving department ... whose duties include processing and forwarding mail, can properly be considered an agent of the district clerk. Therefore, once [Moore's] cost bond arrived in the receiving department, it was within the effective custody or control of the district clerk." Moore, 840 S.W.2d at 441.
The facts in this case are distinguishable from Moore in that here, the envelope was not addressed to the district clerk or any other clerk. Instead, it was addressed to Dallas County Court #265. Even if the district clerk and the district court are located in the same building, as they were in Moore , the application of the rule in that case was not based on proximity, but rather based on the fact that the envelope was addressed to a clerk. Regardless of the location of the district clerk in Dallas County, the district clerks in the other 253 counties in Texas might not be in the same building as the district courts.
Further distinguishing this case from Moore is that the trial court is not an agent of the district clerk, and for good reason: judges are ethically prohibited from receiving ex parte communications from a party. Instead, it is the clerk that is responsible for maintaining records filed in the court. TEX. GOV'T CODE § 51.303. Relevant to these proceedings, the clerk is also responsible for forwarding a copy of the notice of appeal to the appellate court and for transmitting the clerk's record to the appellate court upon perfection of an appeal. See TEX. R. APP. P. 25.2(e) ; 35.3(a). Therefore, if a notice of appeal is not filed with the proper clerk, the clerk cannot fulfill his or her duties. Therefore, Rule 9.2(b) ’s requirement of mailing to the proper clerk is essential and ensures fairness in the judicial proceeding.
(ii) Requirement Two: "Properly Addressed"
In Taylor , the Appellant filed his notice of appeal in the court of appeals instead of with the clerk. Pursuant to Tex. R. App. P. 25.2(c)(1), the clerk of the court of appeals file-stamped the motion and forwarded the notice to the clerk of the convicting court. This Court held that Taylor's notice of appeal arrived in the proper court within the window of time permitted under the mailbox rule, rendering it timely filed.
In the instant case, Appellant's envelope was not addressed to the court of appeals. If it had been, the intermediate court would have been mandated under the rules of appellate procedure to forward the notice of appeal to the trial court clerk. Instead, the envelope was addressed to the trial court.
Three intermediate courts that have addressed this issue have held that Rule 9.2 does not include mailing notice to an attorney, the trial court, or a trial judge. Turner v. State , 529 S.W.3d 157, 159 (Tex. App.—Texarkana 2017, no pet.) ; Bowen v. State , 05-19-01530-CR, 2020 WL 1042646 (Tex. App.—Dallas Mar. 3, 2020, no pet.) ; Herrera v. State , 04-19-00725-CR, 2020 WL 4219605 (Tex. App.—San Antonio July 22, 2020, no pet.). A strict reading of Rule 9.2(b)(1)(B), as the Fifth Court of Appeals did in this case, supports these holdings. Therefore, Appellant's envelope addressed to "Dallas County Court #265" is not properly addressed according to the plain language of Rule 9.2(b)(1)(B).
(iii) Requirement Three: "In the mail before last day of filing"
Appellant complied with this last requirement. The record shows that Appellant's sentence was imposed on October 7, 2019, and no motion for new trial was held. Therefore, Appellant's notice of appeal was due by November 6, 2019. Appellant's pro se motion was postmarked on November 4, 2019, providing "conclusive proof" of the date of mailing. TEX. R. APP. P. 9.2(b)(2)(A). However, the use of the connector "and" in the rule requires that all three elements be present. Appellant has failed to comply with two of the three elements of the rule.
Appellant suggests that this Court ignore the first two requirements of Rule 9.2 and allow Appellant to avail himself of the mailbox rule simply because he mailed the notice of appeal prior to the deadline. Although our interpretation of Rule 9.2(b) is strict, it is not improper. And if mailing the document to the convicting court was not sufficient under Rule 9.2, then it also would not qualify under the common law "prisoner mailbox rule," assuming Appellant had raised such an argument.
One of the dissents opines that the Rules Committee should consider incorporating the prisoner mailbox rule into Rule 9.2(b). Dissenting Opinion by Judge Yeary, p. 5. This Court already did so in Campbell where we held:
Like our sister courts, we decline to penalize a pro se inmate who timely delivers a document to the prison mailbox. We find the analysis of the United States Supreme Court in Houston v. Lack , 487 U.S. 266 [108 S.Ct. 2379, 101 L.Ed.2d 245] (1988) to be compelling. We see no reason for this Court to hold contrarily to both the United States and Texas Supreme Courts. Therefore, we
shall apply those considerations to an analogous situation, such as the present case. We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk.
Campbell , 320 S.W. 3d at 344. However, it is important to recognize that the litigant in Campbell properly addressed his notice to the correct clerk (specifically, the clerk of the specified Potter County district court).
Similarly, in Houston v. Lack , 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), cited by this Court for authority in Campbell , the pro se inmate properly addressed his notice of appeal to the District Clerk in compliance with the requirements as set forth in provision 28 USCS 2107 (requiring a notice of appeal from the judgment of a Federal District Court in a civil case be filed within 30 days after the entry of that judgment) and Rule 4(a)(1) of the Federal Rules of Appellate Procedure (requiring that such a notice of appeal be filed with the clerk of the District Court). Likewise, the pro se litigants in the Texas Supreme Court cases cited by the dissent complied with Rule 9.2(b) and Rule 5 of the Texas Rules of Civil Procedure. In Ramos v. Richardson , 228 S.W.3d 671, 673 (Tex. 2007), the record indicates the pro se inmate did everything necessary to comply with the rules by addressing his notice to the proper clerk. Similarly, in Warner v. Glass , 135 S.W.3d 681 (Tex. 2004) the Texas Supreme Court recognized that the pro se inmate otherwise complied with Rule 5 of the Texas Rules of Civil Procedure by properly addressing the document and holding that "[O]nce a party has satisfied his duty to put a legal instrument in the custody and the control of the court clerk, he should not be penalized for errors made by the court clerk." Id. at 684–85.
Rule 5 of the Texas Rules of Civil Procedure states: "If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time." (Emphasis added).
In the above cited cases, the issue was error outside of the inmate's control: either clerical or postal system error, and the equitable decision was made that, since the pro se litigant complied with the applicable rules, there should be a tolling of the jurisdictional timeline.
The error here is different. In this case, the delay in the receipt of Appellant's notice of appeal by the proper clerk was caused by Appellant's failure to comply with Rule 9.2(b). Our holding in Campbell incorporated the prisoner mailbox rule into Rule 9.2 ; it did not abolish the inmate's compliance with the rule. Therefore, we decline to adopt both the dissent's opinions and Appellant's request that a pro se litigant need not follow Rule 9.2(b), which specifically designates with whom the notice should be filed. Without compliance with the rules, there is a greater potential for filings to get lost when they are mailed directly to the wrong recipient.
All of the above notwithstanding, Appellant argues that our strict application of the mailbox rule penalized him "on the bases that he lacked control over the county mail system and could not be present to assure that the clerk filed his tendered notice of appeal." Although the record did not contain direct evidence of the date on which the district court received the notice, his notice was stamped "filed" on December 2, 2019, 56 days after the court's judgment was entered. Appellant contends that he should be allowed to show that his envelope was received within ten days by the mailroom on behalf of the district clerk. Appellant suggests, in the interest of judicial economy, that this Court should abate the appeal to allow Appellant evidentiary proceedings to show that his notice of appeal was timely received by the receiving department, if not by the district clerk.
What Appellant seeks here is not the supplementation of the record, but the creation of a new record. While Rule 34.5(c)(1) of the Texas Rules of Appellate Procedure would permit Appellant to supplement an appellate record with material that has been omitted from the appellate record, the rule does not permit Appellant to create a new appellate record. TEX. R. APP. P. 34.5(c)(1) ; see also Solomon v. State , 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) ; see also Williams v. State , 937 S.W.2d 479, 487 (Tex. Crim. App. 1996). Appellant's proper procedural vehicle for the development of facts regarding the date of receipt of his notice by the district clerk would be a writ of habeas corpus.
CONCLUSION
Because Appellant did not comply with the plain, unambiguous mailbox rule, he did not invoke the jurisdiction of the appellate court. We affirm the judgment of the court of appeals dismissing the appeal for lack of jurisdiction.
Yeary, J., filed a dissenting opinion.
Walker, J., filed a dissenting opinion.
Keel, J., dissented.
DISSENTING OPINION
Yeary, J., filed a dissenting opinion.
The real problem in this case is that the record does not seem to reveal when Appellant's notice of appeal was actually "received" by the appropriate court clerk for purposes of the operation of the so-called "mailbox rule." The clerk did not formally file the notice of appeal until December 2nd, which was considerably later than the November 6th deadline for filing. Even so, if all the criteria for the application of Rule 9.2(b)(1) had been met, Appellant might have been granted an additional ten days beyond the November 6th due date, so long as the clerk actually "received" the notice for filing within ten days of that date.
Rule 9.2(b)(1) of the Texas Rules of Appellate Procedure provides:
(b) Filing by Mail.
(1) Timely Filing. A document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing.
Tex. R. App. P. 9.2(b)(1) (emphasis added).
Former Rule 4(b) contained substantially the same language as current Rule 9.2(b). Taylor v. State , 424 S.W.3d 39, 44 (Tex. Crim. App. 2014).
But the Court today holds that Appellant may not rely on Rule 9.2(b)(1) because he did not send his notice of appeal to the "proper clerk" for purposes of triggering Rule 9.2(b)(1)(A). Instead, he addressed it to the trial court; specifically, to "Dallas County Court #265." For that reason, according to the Court, the "mailbox rule" does not apply, and it makes no difference when the clerk might have "received" the notice of appeal for filing. The Court concludes that the court of appeals lacked jurisdiction because the notice of appeal was not actually filed until well after November 6th.
None of this should matter, of course, if the so-called "prisoner mailbox rule" were to apply. Unlike the regular "mailbox rule" embraced in Rule 9.2(b)(1), which only extends the time for "filing" a document, the "prisoner mailbox rule" would render Appellant's notice of appeal "filed" as of the date he submitted it to prison authorities for mailing. See Campbell v. State , 320 S.W.3d 338, 342 (Tex. Crim. App. 2010) ("We hold that the pleadings of pro se inmates shall be deemed filed at the time they are delivered to prison authorities for forwarding to the court clerk."). We do not know exactly when Appellant did that, but it must have been prior to November 4th, two days before the due date of November 6th, because the envelope in which his notice of appeal was mailed was postmarked November 4th.
The Court today relies upon Campbell v. State , 320 S.W.3d at 342, for the proposition that "the prisoner mailbox rule is still subject to the requirements of Rule 9.2(b)." Majority Opinion at 131. That would include the requirement of sending a document to the "proper clerk." I am not entirely sure that is what Campbell truly holds, but even if it were, I agree with Judge Walker that those requirements were satisfied when Appellant addressed his notice of appeal to the trial court.
The Texas Supreme Court has construed Rule 9.2(b)(1)(A) ’s nearly identical predecessor (former Texas Rule of Appellate Procedure 4(b)) with sufficient leeway that a pleading addressed to the proper trial court should be deemed also to constitute a pleading addressed to the "proper clerk." See Stokes v. Aberdeen Ins. Co. , 917 S.W.2d 267, 268 (Tex. 1996) ("The ministerial servant of the court is neither separate from nor above the court itself. We hold the Stokes timely filed their motion for new trial ... by mailing it to the proper court."). It seems to me that we do the opposite of benefitting the jurisprudence of this state by construing the same appellate rule differently than the other of our two state high courts has construed it, especially when there is not a good reason to do so. Perhaps I would reach a different conclusion if I could think of a good reason, but I cannot. And the Court does not suggest one. I am persuaded that the Texas Supreme Court's construction of Rule 9.2(b)(1)(A) is a reasonable one, and I would follow it here.
Because Appellant addressed his notice of appeal to the trial court, and it was in fact deposited in the mail, he has satisfied all of Rule 9.2(b)(1) ’s criteria. Therefore, even assuming that the "prisoner mailbox rule" is subject to all the same requirements as Rule 9.2(b)(1), Appellant has properly invoked it, and his notice of appeal should be deemed to have been filed at least as of the date of the postmark on the envelope, namely, November 4th. This was timely.
It is true that the "prisoner mailbox rule" is a creature of judicial decision. We have adopted it—as have the United States Supreme Court and the Texas Supreme Court—not as a matter of construing Rule 9.2(b), but as a judicial enhancement to the rule. See Campbell , 320 S.W.3d at 342–44 ("Like the United States Supreme Court, the Texas Supreme Court recognized the unique circumstances of pro se inmate litigants. We also recognize those circumstances.") (citing Houston v. Lack , 487 U.S. 266 (1988), Ramos v. Richardson , 228 S.W.3d 671, 673 (Tex. 2007), and Warner v. Glass , 135 S.W.3d 681, 684–85 (Tex. 2004) ). Indeed, it is an eminently sensible enhancement, given that a jail or prison inmate is at the complete mercy of correctional authorities to actually deposit his pro se legal pleadings into the mail in time to invoke Rule 9.2(b)(1) ’s ten-day grace period. Perhaps the Court's Rules Committee should consider formally incorporating the "prison mailbox rule" within Rule 9.2 itself.
I respectfully dissent. DISSENTING OPINION
Walker, J., filed a dissenting opinion.
Appellant's notice of appeal was due November 6. He sent his notice of appeal by mail from the Dallas County jail to the 265th District Court of Dallas County, and the envelope was postmarked November 4. The notice of appeal was not filed by the district clerk until December 2.
The Court concludes that his notice of appeal was not timely because the envelope was not "properly addressed" to the "proper clerk." The Court also concludes that the notice of appeal was not timely because it was filed beyond the 10-day grace period of the mailbox rule. I respectfully disagree with the Court's conclusions. Notice of appeal was timely, and I respectfully dissent.
I — "Proper Clerk" and "Properly Addressed"
Under the "mailbox rule":
A document received within ten days after the filing deadline is considered timely filed if:
(A) it was sent to the proper clerk by United States Postal Service or a commercial delivery service;
(B) it was placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercial delivery service on or before the last day for filing.
For pro se inmates, their documents are deemed filed at the time they are delivered to prison authorities for forwarding to the district clerk. Campbell v. State , 320 S.W.3d 338, 344 (Tex. Crim. App. 2010). This is the "prisoner mailbox rule." Id. at 342. Because the documents are deemed filed when delivered to prison authorities, the regular mailbox rule's extra 10 days for a document to be received by the clerk do not apply.
The issue is whether Appellant's pro se letter, mailed from the Dallas County jail to:
Dallas County Court #265133 N Riverfront blvd.Dallas Tx 75207
was sent to the "proper clerk," such that the mailbox rule and the prisoner mailbox rule apply.
The Court decides that Appellant's notice of appeal was not sent to the proper clerk because the envelope was not addressed to a "clerk" but was, instead, addressed to the trial court, which is not an agent of the clerk such that Moore v. State would be applicable. The Court also decides that Appellant's notice of appeal was not properly addressed because, again, it was addressed to the trial court.
In Moore v. State , the defendant mailed his appellate cost bond to the "Bond forfeiture Clerk" on the second floor of Frank Crowley Courts Building in Dallas. Moore v. State , 840 S.W.2d 439, 440 (Tex. Crim. App. 1992). The defendant's envelope, however, failed to identify whether it was intended for the clerk of the district court or the clerk of the county court, both of which were on the second floor. Id. We concluded that, despite the envelope's failure to specify which clerk was the intended recipient, the envelope was in the effective custody or control of the proper clerk once it arrived in the receiving department of the Frank Crowley Courts Building. Id. at 441 (applying an agency theory that "an employee who works in the receiving department in the Frank Crowley Courts Building, whose duties include processing and forwarding mail, can be properly considered an agent of the district clerk"). We also concluded that the "envelope was not improperly addressed because it was sufficiently specific as to be received at the proper place." Id. Accordingly, the appellate cost bond was timely filed under former Rule of Appellate Procedure 4(b).1 Id.
The envelope in Appellant's case got closer to the "proper clerk" than the envelope in Moore . The envelope in Appellant's case was directed to the very same building: the Frank Crowley Courts Building in Dallas. While I recognize that members of this Court may not have the same experience practicing law in Dallas County, the truth of the matter is the office for the district clerk of the 265th District Court is located in the same building and in the same office suite as the 265th District Court. An envelope addressed to the "District Clerk of the 265th District Court" would go through the same door and into the same hands of the district court's staff. The only difference, if any, might be that the envelope would be delivered by court staff to the district clerk's desk without being opened, whereas the envelope addressed to the court generally would be opened before being delivered to the district clerk in the same office suite. While the Court is correct that the trial court is not an agent of the district clerk, the district court's staff handling the district court's mail also handle the district clerk's mail. "There is no reason to believe the [envelope] would have arrived in the district clerk's office any sooner than it did, even if the address had specified the ... district clerk." Moore , 840 S.W.2d at 441. "Proper clerk" and "properly addressed" were met in this case.
And the reality is, for whatever arguments can be made that the envelope addressed to "Dallas County Court #265" was not sent to the "proper clerk," it was actually received by the proper clerk just the same.
In support of its position, the Court cites Turner , Herrera , and Bowen . Turner v. State , 529 S.W.3d 157 (Tex. App.—Texarkana 2017, no pet.) ; Herrera v. State , No. 04-19-00725-CR, 2020 WL 4219605 (Tex. App.—San Antonio July 22, 2020, no pet.) (mem. op., not designated for publication) ; Bowen v. State , Nos. 05-19-01530-CR, -01531-CR, -01532-CR, -01533-CR, 2020 WL 1042646 (Tex. App.—Dallas Mar. 3, 2020, no pet.) (mem. op., not designated for publication). A review of these cases shows they are inapplicable to Appellant's case before us.
In Turner , the court of appeals found the notice of appeal untimely for two reasons: (1) it was not sent to the proper clerk; and (2) it was not properly addressed. Turner , 529 S.W.3d at 159. On both of these reasons, however, Turner is distinguishable. In Turner the envelope was not sent in a properly addressed envelope to the proper clerk because it was addressed to the trial judge, and "the envelope in which the notice of appeal was placed for mailing was addressed to ‘100 North Stateline Avenue,’ referred to as the Bi-State Justice Building in Texarkana, Texas, instead of the proper destination—the Bowie County District Clerk's Office in New Boston, Texas." Id. In Appellant's case, the envelope was not "addressed to a trial judge, in a city different from the one in which the proper clerk's office is located." Id. Appellant's envelope was addressed to the district court generally, of which the district clerk is a member of the staff. The envelope was addressed to the proper destination: it had the street address of the Frank Crowley Courts Building where the district clerk for the 265th District Court was located, and it went further and specified the 265th District Court, where the district clerk for the 265th District Court was located within the Frank Crowley Courts Building.
Herrera , an unpublished opinion, is distinguishable because it did not decide that the notice was untimely because it was not properly addressed. Instead, the court of appeals held the notice untimely because, under the prisoner mailbox rule, the notice was received by the prison authorities too late—the notice was postmarked nearly a month after notice of appeal was due and there was no evidence in the record showing notice was received before the due date. Herrera , 2020 WL 4219605, at *2.
The Court relies not on the holding of Herrera , but a footnote. See id. , at *2 n.3. In that footnote, the court of appeals noted that the envelope was addressed to the trial judge, which did not constitute a properly addressed envelope to the proper clerk under Turner . Id. But this was not the basis for its ruling; it was just a "note." See id. Nor was it the alternate reason for finding a lack of jurisdiction that the court of appeals "further note[d]": the appeal was seeking review of a post-conviction writ of habeas corpus proceeding, over which the court of appeals lacked subject matter jurisdiction. Id. (citing TEX. CODE CRIM. PROC. Ann. art. 11.07 ; Bd. of Pardons & Paroles ex rel. Keene v. Court of Appeals for Eighth Dist. , 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) ; Ater v. Eighth Court of Appeals , 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) ; and Ex parte Alexander , 685 S.W.2d 57, 60 (Tex. Crim. App. 1985) ).
At least in Bowen , another unpublished opinion relying on Turner , the notice of appeal was received within the proper time under the prisoner mailbox rule. Bowen , 2020 WL 1042646, at *1. And in Bowen , the court of appeals found that the notice was not sent to the proper clerk because it was addressed to the trial judge. Id. But as discussed above, Appellant's envelope was not addressed to the trial judge. It was addressed to the district court generally, where the district clerk's office was located. Like Turner , Bowen does not persuade me Appellant's envelope was not sent to the proper clerk.
A persuasive authority I do think worth discussing is the opinion of our sister court, the Supreme Court of Texas, in Stokes v. Aberdeen Ins. Co. , 917 S.W.2d 267 (Tex. 1996). In Stokes , the Supreme Court held that, under the mailbox rule of former Rule 4, mailing the document to the proper court address is conditionally effective as mailing it to the proper clerk's address. Id. at 268. The Supreme Court determined that the filing (a motion for new trial) was timely because although it was mailed to the district judge rather than the district clerk, it was mailed to the correct courthouse address, a copy of the document was then sent to the clerk via a courier service, and the clerk received the copy within 10 days of the deadline. Id. Not only was Appellant's envelope mailed to the correct courthouse address in this case, it was sent to the office suite where the district clerk's office was located.
Finally, the Rules of Appellate Procedure, including the mailbox rule, should not be applied so harshly, especially against pro se appeals. As we recently reiterated:
"The Rules of Appellate Procedure should be construed reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.
A person's right to appeal a civil or criminal judgment should not depend upon traipsing through a maze of technicalities. We do not require "magic words" or a separate instrument to constitute notice of appeal."
Our sister Court, the Supreme Court of Texas, has also emphasized that the policy embodied in the Rules of Appellate Procedure disfavors disposing of appeals based upon harmless procedural defects.
Williams v. State , 603 S.W.3d 439, 447–48 (Tex. Crim. App. 2020) (quoting Harkcom v. State , 484 S.W.3d 432, 434 (Tex. Crim. App. 2016), and citing Verburgt v. Dorner , 959 S.W.2d 615, 616 (Tex. 1997) ).
II — Received, not Filed
The Court also decides that Appellant's notice of appeal was not timely because it was filed by the district clerk on December 2. But under the mailbox rule, when the document was received controls, not when it was filed. See Tex. R. App. P. 9.2(b)(1) ("A document received within ten days after the filing deadline....") (emphasis added). And under the prisoner mailbox rule, the date that matters is when it was received by prison authorities. Campbell , 320 S.W.3d at 344.
If it were the other way, where the date that the mailed notice is filed controls instead of when it was received , then a district clerk's failure to timely file an appellant's notice of appeal would shut her out of an appeal, even if she followed all of the requirements of the mailbox rule and the district clerk received the notice within 10 days of the deadline. Or, if she were a prisoner filing pro se , where she followed all of the requirements of the mailbox rule and the prison authorities receive the notice before the filing deadline.
There is no direct evidence in the record of when Appellant's notice of appeal was received by the prison authorities, but the envelope was postmarked November 4. Unless Appellant was running a United States Post Office in his own jail cell, the prison authorities received the envelope on or before November 4. Appellant's notice of appeal, which was due November 6, was received on time.
III — Conclusion
Although it was not addressed to the "Clerk," the envelope containing Appellant's notice of appeal was properly addressed, sent to the proper clerk, and delivered to prison authorities before the date notice of appeal was due. Under the prisoner mailbox rule, Appellant's notice of appeal was timely. I respectfully dissent to the Court shutting the door on Appellant's appeal simply because the envelope did not have the magic word "Clerk" on it.