Brandy Brenay Charles and Ronald Dwayne Whitfield v. Texas Department of Family and Protective Services ( 2022 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: B.B.C. and R.D.W. v. Texas Department of Family and
Protective Services
Appellate case number: 01-18-00311-CV
Trial court case number: 2017-02559J
Trial court: 314th District Court of Harris County
On April 16, 2018, appellants, B.B.C. and R.D.W., filed a pro se “Original Notice[]
of Appeal[]” from the trial court’s Final Decree for Termination, terminating their parental
rights to R.P.R., Jr. On April 25, 2018, appellants filed a pro se motion to dismiss their
appeal. Appellants’ motion, in which they seek to voluntarily dismiss their appeal, is a
242-page filing including various unidentified and irrelevant documents, such as items
printed from the website of the Federal Bureau of Investigation and various emails which
appear to be drafted by R.D.W. Many of the 242 pages also include handwritten notes,
some of which are not legible.
On May 8, 2018, the Court granted appellants’ motion to dismiss, and the Court’s
judgment also issued May 8, 2018. Despite voluntarily moving to dismiss their appeal,
appellants subsequently filed a motion for rehearing and motion for en banc
reconsideration of the Court’s May 8, 2018 opinion, both of which were dismissed as moot
on August 28, 2018.
Intermediate appellate courts, such as this Court, retain plenary power over an
appeal for a period of: (1) sixty days after its judgment is entered if no timely filed motion
for rehearing or motion for en banc reconsideration is filed, or (2) thirty days after the
appellate court overrules all timely filed motions for rehearing or motions for en banc
reconsideration. See TEX. R. APP. P. 19.1. Generally, once an intermediate appellate
court’s plenary power expires, it lacks jurisdiction, or any authority, to take any action in
an appeal. See Nunu v. Risk, 612 S.W.3d 645, 655 (Tex. App.—Houston [14th Dist.] 2020,
pet. denied) (dismissing appeal for lack of jurisdiction where plenary power of intermediate
appellate court expired).
Once an intermediate appellate court’s plenary power expires, the appellate court’s
jurisdiction is limited, and the appellate court may only take those actions specifically
identified and prescribed in rule 19.3 of the Texas Rules of Appellate Procedure. See TEX.
R. APP. P. 19.3. Notably, none of the permitted post-plenary power bases set forth in rule
19.3 apply here.
As noted above, the Court issued the judgment in this appeal on May 8, 2018 and
appellants’ motion for rehearing and motion for en banc reconsideration were dismissed as
moot by the Court on August 18, 2018. Accordingly, the Court’s plenary power over this
appeal expired on September 17, 2018. See TEX. R. APP. P. 19.1(b). Stated another way,
as of September 17, 2018, this Court has had no jurisdiction, and has lacked any authority,
to take any action in this case under any circumstances, except as expressly permitted by
Texas Rule of Appellate Procedure 19.3.
Despite that fact, appellants have filed numerous motions and requests for relief
since the Court’s plenary power expired. In response to these filings, the Court has notified
appellants, as we do again in this order, that the Court lacks authority to take any action on
the filings. The Court has issued orders to this effect on at least three occasions, including:
(1) a January 24, 2019 order on appellants’ “Amendment & Supplemental to Emergency
Motion to Set Aside Void Judgment,” (2) an April 9, 2019 order on appellants’ letter-
motions for stay and recall of mandates, and (3) a March 3, 2022 order on appellants’
“Motions to Recall Mandates.”
Since the Court’s March 3, 2022 order issued, appellants have filed several
additional motions, including a March 11, 2022 filing, which is 123 pages and entitled
appellants’ “Motions: (1) to Recall and Quash Void Mandates [a]nd (2) Set Aside Void
Judgments Procured or Obtained by Extrinsic Fraud upon the Courts. . . (3) Based on want
of Jurisdiction for Failure to File Any Notice of Appeal, Much Less, Timely and a Timely
Motion to Extend Time to File Notice of Appeal and (4) for Order Correcting Docket to
Read Crane Filed an Amended Notice of Appeal.
On March 18, 2022, appellants filed another 57-page document, including a cover
letter, which, on its own, is 11 pages, stating that the filing is entitled appellants’ “Motion
for Recusal, Number 01-18-00485-CV; Motion to Reinstate Case, Supreme Court Number
18-1217, and Complaint for Judicial Misconduct, based on Both Fraud Upon the Court and
“Because [Texas Attorney Donald M. Crane] did not File a Motion for Extension of Time
Under Rule 26.3, and [His] [Amended] Notice of Appeal was not Filed Within Twenty
Days After the [Judge of] the Trial Court Signed the Final Order Terminating . . . Parental
Rights, [His] Notice of Appeal was Untimely and [as We Have Already Explained Before
Finding this Case Cited Below on Yesterday, that, Even if ‘Treating’ Such ‘Amended
Notice of Appeal’ as an Original ‘Notice of Appeal,’ Still the legal Result is the Same
Because be it an Amended Notice of Appeal or a Notice of Appeal both will have] Failed
to Invoke the Jurisdiction of the Court of Appeals.”
Finally, on April 6, 2022, appellants filed a 74-page document, entitled appellants’
“Complaint for Judicial Misconduct and Motions: (1) for Reconsideration En Banc, (2) for
Rehearing (no reasons stated for conclusion; ergo, How Does one Show Oneself Entitled
to Relief Based on a Memorandum Opinion Which Fail[s] and Refuses to Provide Both the
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Real Party/Litigant and Public and Taxpayers the Reasons Which Led the Panel to its
Actions), and (3) for Panel Members to Recuse Themselves and Withdraw Their
Memorandum Opinion Filed Herein–Assuming There was a Panel of Three Members and
Not Merely a Single Justice Acting Alone Without any Other Member of the Court Aware
and thus Participating.”
As analyzed above, and as appellants have been notified on multiple occasions in
this appellate case number, the Court’s plenary power over this appellate cause number
expired on September 17, 2018. Because the Court’s plenary power has expired, the Court
has no jurisdiction, and as such, no authority to take any action on any filing in this case
except as expressly permitted by Texas Rule of Appellate Procedure 19.3.
Absent plenary power, each of appellants’ above-referenced motions must be
dismissed for lack of jurisdiction.
We further note that appellant, R.D.W., has been declared a vexatious litigant and
is the subject of three prefiling orders. The most recent prefiling order was signed on
March 30, 2016 in Prophet Ronald Dwayne Whitfield v. First Serv. Credit Union and Big
Star Honda, Cause No. 2015-45473, in the 295th District Court of Harris County, Texas.
See Office of Court Administration List of Vexatious Litigants Subject to a Prefiling Order
under chapter 11 of the Civil Practice and Remedies Code, available at
www.txcourts.gov/judicial-data/vexatious-litigants.aspx (last viewed Feb. 24, 2022); see
also TEX. CIV. PRAC. & REM. CODE ANN. § 11.101 (requiring Office of Court
Administration to maintain and post list of vexatious litigants on agency website);
Douglass v. Am. Title Co., 196 S.W.3d 876, 878 n.2 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (taking judicial notice of Harris County record of vexatious litigants).
In addition to being declared a vexatious litigant in Texas state courts, R.D.W. is
also the subject of a “Preclusion Order” in the United States District Court for the Southern
District of Texas, which bars him from filing any noncriminal actions in that court. In the
Preclusion Order, the Southern District of Texas stated that R.D.W. has a “penchant for
filing meritless and/or frivolous pro se federal lawsuits and appeals,” which have “resulted
in a multitude of monetary sanctions and preclusion orders against him in the Southern
District of Texas and Fifth Circuit Court of Appeals.” The Preclusion Order further
concludes that R.D.W. has engaged in “repeated abuse of the judicial system.”
As detailed in this order, despite being notified on multiple occasions that the Court
is without jurisdiction or authority to take any further action, as the Court’s plenary power
expired approximately forty-four months ago, in September 2018, appellants, specifically,
R.D.W., have engaged in a similar pattern of filing meritless and/or frivolous filings in this
appellate cause number. Accordingly, for any future document submitted by appellants in
this appellate cause number, the Court will not take such documents under consideration,
and will not issue any further orders related to such documents. The Clerk of this Court
shall not file any future documents submitted by appellants in this appellate cause
number and is directed to mark any such document as “received.”
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It is so ORDERED.
Judge’s signature: ___/s/ Amparo Guerra______
Acting for the Court
Panel consists of: Justices Kelly, Goodman, and Guerra
Date: ___April 21, 2022____
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