Curtis James Pritchard v. State ( 2012 )

Motion to Abate Denied as Moot; Order filed October 16, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00769-CR
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CURTIS JAMES PRITCHARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 8
Harris County, Texas
Trial Court Cause No. 1804094
ORDER
A jury convicted appellant of assault on a family member. On July 17, 2012, the
trial court sentenced appellant to one year in county jail. No motion for new trial was
filed. The clerk’s record was filed September 13, 2012. Our record contains two pro se
notices of appeal, both of which were filed more than thirty days after appellant was
sentenced. See Tex. R. App. P. 26.2(a)(1). There is a hand-written notice of appeal dated
and filed on August 17, 2012, thirty-one days after sentencing. In addition, there is a form
notice of appeal filed August 21, 2012, along with an envelope post-marked August 17,
2012, showing that the second notice of appeal was mailed from the Harris County Jail.
Because it appeared that appellant’s notice of appeal was untimely, on September
25, 2012, this court notified appellant that the court would consider dismissal of the
appeal unless any party filed a response demonstrating that we have jurisdiction over the
appeal. On October 9, 2012, appellant, through his appointed counsel, filed a motion to
abate the appeal for an evidentiary hearing on the timeliness of appellant’s notice of
appeal. Appellant asserts that he delivered his notice of appeal to sheriff’s deputies at the
jail well within the filing deadline and he has no control over when it was deposited in
the mail. The motion is supported by appellant’s affidavit stating that he completed the
notice of appeal form at the jail library shortly after trial and delivered it for mailing
during the first two weeks of August.
Pleadings, including notices of appeal, of pro se inmates are deemed filed at the
time they are delivered to prison authorities for forwarding to the district or county clerk.
Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010) (citing Houston v. Lack,
487 U.S. 266, 271, 275, 108 S. Ct. 2379 (1988)). Texas Rule of Appellate Procedure
9.2(b) governs filing by mail. When a document is received within ten days of its due
date, it is considered timely filed if it was properly mailed timely. Tex. R. App. P.
9.2(b)(1). The rule states that while “a legible postmark affixed by the United States
Postal Service” is conclusive proof of mailing, we may consider other proof. Tex. R.
App. P. 9.2(b)(2). An affidavit may be accepted as proof of mailing when a postmark is
unavailable. See Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693–94 (Tex. 1995)
(holding that attorney’s uncontroverted affidavit may be evidence of date of mailing);
Watson v. Heaton, No. 14-09-00717-CV, 2010 WL 5132565 (Tex. App.—Houston [14th
Dist.] Dec. 14, 2010, no pet.) (mem. op.). We see no reason why we should not accept
appellant’s affidavit stating that he timely delivered his notice of appeal to prison
officials. See Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (holding that letter
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and certificate of service accompanying notice of appeal constituted sufficient proof that
inmate’s notice of appeal was timely placed in outgoing prison mailbox). Abatement for
an evidentiary hearing is unnecessary in this case.
Accordingly, we DENY as moot appellant’s motion to abate the appeal for a
hearing. We ORDER appellant’s notice of appeal deemed timely filed because appellant
verified that he timely delivered it to jail officials for mailing. Appellant has invoked this
court’s jurisdiction over his appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.
App. 1996) (“A timely notice of appeal is necessary to invoke a court of appeals’
jurisdiction.”).
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
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