James Franklin Bowen v. State ( 2020 )

DISMISS and Opinion Filed March 3, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01530-CR
No. 05-19-01531-CR
No. 05-19-01532-CR
No. 05-19-01533-CR
JAMES FRANKLIN BOWEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F19-40935-M, F19-40937-M,
F19-40936-M & F19-40939-M
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Myers, and Justice Carlyle
Opinion by Chief Justice Burns
James Franklin Bowen appeals his convictions for unauthorized use of a
motor vehicle, possession of less than one gram of methamphetamine, evading
arrest, and aggravated robbery. Appellant entered open pleas of guilty to all four
offenses and pleaded true to the enhancement paragraphs alleged in each case. On
November 5, 2019, the trial court found appellant guilty and found the enhancement
paragraphs alleged in each offense true. The trial court then assessed punishment at
ten years each for the unauthorized use and possession cases and forty-five years
each for the evading arrest and aggravated robbery cases. The trial court certified
that appellant had the right to appeal each case because he had not entered into a
plea bargain agreement with the State.
On December 9, 2019, appellant filed his notices of appeal. We questioned
the timeliness of his appeals and requested jurisdictional letter briefs from appellant
and the State. Appellant did not respond; the State filed a letter brief and asserted
that we lacked jurisdiction over the appeals because the notices of appeal were not
timely filed. For the reason that follows, we agree with the State and dismiss these
appeals.
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). A document
received “within ten days after the filing deadline is considered timely filed if,” as
relevant here, “it was sent to the proper clerk by United States Postal Service or a
commercial delivery service.” See TEX. R. APP. P. 9.2(b)(1)(A) (emphasis added).
Courts have interpreted the “proper clerk” liberally to include “agents of the district
clerk” and the clerk of the correct court of appeals. See Taylor v. State, 424 S.W.3d
39, 45‒46 (Tex. Crim. App. 2014); Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim.
App. 1992). Mailing a notice of appeal to one’s attorney or to the trial court judge
does not meet the requirements of the rule. Turner v. State, 529 S.W.3d 157, 159
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(Tex. App.—Texarkana 2017, no pet.) (holding prisoner mailbox rule did not apply
when appellant delivered envelope to prison authorities for forwarding to trial
judge); Rhodes v. State, 05-16-00921-CR, 2017 WL 3587101, at *2 (Tex. App.—
Dallas Aug. 21, 2017, no pet.) (mem. op., not designated for publication) (mailing
notice of appeal to third-party agent for redelivery to trial court clerk does not
comply with rule). In the absence of a timely filed notice of appeal, we must dismiss
the appeal for want of jurisdiction. See Castillo v. Sate, 369 S.W.3d 196, 198 (Tex.
Crim. App. 2012).
Here, the trial court found appellant guilty and pronounced sentence in each
of appellant’s cases on November 5, 2019. Because appellant did not file a motion
for new trial, his notices of appeal were due on December 5, 2019. See TEX. R. APP.
P. 26.2(a)(1). Appellant’s notices of appeal, dated November 24, 2019 and post-
marked November 25, 2019, were mailed to the trial court judge. They were then
forwarded to the district clerk who file stamped them on December 9, 2019. Because
the notices were not sent to the proper clerk, appellant cannot avail himself of the
ten-day grace period provided by the mailbox rule. See id. 9.2(b); see also Turner,
529 S.W.3d at 159. As a result, appellant’s notices of appeal are untimely, and we
lack jurisdiction over these appeals. See Castillo, 369 S.W.3d at 202.
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We dismiss these appeals for want of jurisdiction. 1
/Robert D. Burns, III/
ROBERT D. BURNS, III
Do Not Publish CHIEF JUSTICE
TEX. R. APP. P. 47.2(b)
191530F.U05
1
Appellant may seek out-of-time appeals under article 11.07 of the code of criminal procedure. See
TEX. CODE CRIM. PROC. ANN. art. 11.07.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F19-40935-M.
No. 05-19-01530-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Carlyle
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered March 3, 2020.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F19-40937-M.
No. 05-19-01531-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Carlyle
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered March 3, 2020.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F19-40936-M.
No. 05-19-01532-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Carlyle
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered March 3, 2020.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JAMES FRANKLIN BOWEN, On Appeal from the 194th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F19-40939-M.
No. 05-19-01533-CR V. Opinion delivered by Chief Justice
Burns. Justices Myers and Carlyle
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.
Judgment entered March 3, 2020.
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