Fernando Haffid Camero v. Amantha Jo Camero ( 2016 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER AND NOTICE OF INTENT TO DISMISS FOR WANT OF JURISDICTION
Appellate case name: Fernando Haffid Camero v. Samantha Jo Camero
Appellate case number: 01-15-00860-CV
Trial court case number: 76468-F
Trial court: 300th District Court of Brazoria County
On October 1, 2015, appellant, Fernando Haffid Camero, proceeding pro se and
incarcerated, filed a notice of appeal in this Court, which was forwarded to the trial clerk
and filed there on October 9, 2015, from the final decree of divorce, signed on August 10,
2015. See TEX. R. APP. P. 25.1(a). On November 16, 2015, appellant filed an affidavit of
indigence for appellate costs in this Court in the above-referenced appeal, which the
Clerk of this Court referred to the trial clerk to be filed and requested an indigent clerk’s
record. See id. 20.1(a)(2), (c)(1), (d), 25.1(a). On December 20, 2015, the reporter’s
record was filed in this Court. On January 4, 2016, the trial clerk filed a clerk’s record in
this Court and a separate letter, also dated January 4, 2016, stating that there was no
contest to appellant’s affidavit of indigence filed in the trial court. See id. 20.1(e)(1).
Accordingly, the allegations in the affidavit of indigence are deemed true, and
appellant is entitled to proceed without advance payment of appellate costs. See TEX. R.
APP. P. at 20.1(f). However, because both the reporter’s and clerk’s records have already
been filed in this Court, the Clerk of this Court is ORDERED to deem the appellant
indigent and that he is allowed to proceed on appeal without advance payment of costs
for purposes of the appellate filing fee and the clerk’s and reporter’s record fees.
In addition, after reviewing the notice of appeal and clerk’s record, it appears that
appellant’s notice of appeal, dated September 28, 2015, but received in this Court on
October 1, 2015, from the August 10, 2015 divorce decree, may not have been timely
filed. See TEX. R. APP. P. 25.1(a), 26.1. A motion for extension of time is necessarily
implied when an appellant, acting in good faith, files a notice of appeal beyond the time
allowed by Rule 26.1, but within the 15-day extension period provided by Rule 26.3. See
TEX. R. APP. P. 26.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997).
The appellant must, however, offer a reasonable explanation, in this Court, for failing to
timely file the notice. See TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Hone v.
Hanafin, 104 S.W.3d 884, 886-87 (Tex. 2003); Jones v. City of Houston, 976 S.W.2d
676, 677 (Tex. 1998). Without a timely filed notice of appeal within the 15-day grace
period, no extension can be implied because this Court would lack jurisdiction over the
appeal. See TEX. R. APP. P. 25.1, 26.1, 26.3(b); Verburgt, 959 S.W.2d at 617–18.
However, because appellant is a pro se inmate, the “prisoner mailbox rule” may
apply. Under the “mailbox rule,” a document is “deemed timely filed if it is sent to the
proper clerk by first-class mail in a properly addressed stamped envelope on or before the
last day for filing and is received not more than ten days beyond the filing deadline.”
Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam) (citing TEX. R. CIV.
P. 5 and TEX. R. APP. P. 9.2(b)(1)); see also Campbell v. State, 320 S.W.3d 338, 342, 344
(Tex. Crim. App. 2010) (explaining “prisoner mailbox rule” by “hold[ing] 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.”). The appellant has the burden of
“providing some measure of proof that [his] notice[] of appeal w[as] placed in the United
States mail on or before [the deadline],” such as a “record in the form of the filing letter
accompanying the [appellant’s] notice[] of appeal” stating the date the notice of appeal
was placed in the “outgoing prison mailbox.” Ramos, 228 S.W.3d at 673; see also
Houser v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (per curiam) (holding that
inmate-appellant’s “notice of appeal was deemed filed on the day he mailed it [35 days
after judgment was signed], since it was received one day after the 15-day deadline, . . .
and a motion for extension was thereby implied. . . .”) (internal citations omitted).
Accordingly, the Court ORDERS appellant to file a motion for extension of time
with the Clerk of this Court, providing a reasonable explanation why his notice of appeal
should be deemed timely under the “prisoner mailbox rule,” including proof of when
appellant placed the notice in the outgoing prison mailbox. See Houser, 243 S.W.3d at
646-47; Ramos, 228 S.W.3d at 673. If appellant fails to file this motion within 30 days
of the date of this Order, the appeal may be dismissed for want of jurisdiction without
further notice. See TEX. R. APP. P. 42.3(a), (c).
Finally, to assist the pro se appellant with his motion, if any, the Court ORDERS
the trial court clerk, no later than 10 days from the date of this Order, to provide a copy
of the appellate records to the appellant. The trial court clerk shall further certify to this
Court, within 15 days of the date of this Order, the date when delivery is made.
It is so ORDERED.
Judge’s signature: Laura C. Higley
 Ac
Date: January 21, 2016