Ronald Dwayne Whitfield v. State ( 1995 )

Whitfield v. State of Texas

IN THE

TENTH COURT OF APPEALS

No. 10-95-217-CV

     RONALD DWAYNE WHITFIELD,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS, ET AL.,

                                                                                              Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,243

MEMORANDUM OPINION

      Ronald Whitfield attempts to appeal from the court's dismissal of his in forma pauperis petition. Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1995). Because he failed to properly perfect his appeal, we will dismiss for want of jurisdiction.

      The court signed an order dismissing Whitfield's suit on June 7, 1995. He filed a notice of appeal on June 19, and the transcript was filed in this court on July 10. Upon examining the transcript, our clerk determined that Whitfield had not duly perfected his appeal, and notified him of this defect by letter. Tex. R. App. P. 40(a)(1), 56(a). On September 8, he filed an "Affidavit of Inability to Pay Costs" in this court. This "affidavit" consists of his handwritten statement on the bottom of our clerk's letter to the effect that he cannot pay the costs of his appeal rather than the approved language provided by the legislature. Tex. Civ. Prac. & Rem. Code Ann. §§ 132.001, 132.003 (Vernon Supp. 1995).

      Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App.—Amarillo 1994, writ denied); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Whitfield is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1995); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). His notice of appeal is insufficient to perfect the appeal. See id.

      However, because his notice of appeal is a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Included within the proper perfection of an appeal is the filing of the appropriate instrument, within the appropriate time, in the appropriate court. See Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 526-27 (Tex. App.—El Paso 1995, n.w.h.); El Paso Sharky's, 831 S.W.2d at 5. Whitfield's filing of an affidavit of inability to pay costs in this court does not remedy the defect so that this appeal is properly perfected. See id.; also Tex. R. App. P. 55(b).

      Our clerk notified Whitfield that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

      Therefore, we dismiss this cause for want of jurisdiction. Id.

                                                                               PER CURIAM

Before Chief Justice Thomas

            Justice Cummings and

            Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed September 27, 1995

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