                                                                                       PD-0180-15
                                                                     COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
                                                                     Transmitted 7/14/2015 2:24:41 PM
                                                                       Accepted 7/14/2015 2:30:54 PM
July 14, 2015
                               Cause No. PD-0180-15                                    ABEL ACOSTA
                                                                                               CLERK

                                        In the
                              Court of Criminal Appeals
                                      of Texas

                      PATRICIA ELIZABETH HARKCOM,
                                 Appellant

                                          V.

                             THE STATE OF TEXAS

                        Appeal from Cause No. 02-12-00576-CR
                  In the Second Court of Appeals, Fort Worth, Texas
                               Dismissing the Appeal from
                                   Cause No. CR12165
                in the 355th Judicial District Court, Hood County, Texas

        STATE’S BRIEF ON DISCRETIONARY REVIEW

                                          Robert T. Christian
                                          Hood County District Attorney

                                          Megan Chalifoux
                                          Assistant District Attorney
                                          Hood County District Attorney’s Office
                                          State Bar No. 24073674
                                          1200 W. Pearl Street
                                          Granbury, Texas 76048
                                          Telephone: (817) 579.3245
                                          Facsimile: (817) 579.3247
                                          da.appellate@co.hood.tx.us
                                          Attorneys for the State
                                                   Table of Contents
Table of Contents ................................................................................................................. 2
Index of Authorities .............................................................................................................. 4
Identity of Parties and Counsel .......................................................................................... 6
Issue Presented ...................................................................................................................... 7
Statement Regarding Oral Argument ................................................................................ 8
Statement of the Case .......................................................................................................... 8
Statement of Facts................................................................................................................. 9
Summary of State’s Argument .......................................................................................... 12
Argument .............................................................................................................................. 14
    1.      Harkcom did not comply with Rules 21.4, 25.2, 26.2, or 26.3 of the Texas
            Rules of Appellate Procedure. ............................................................................ 14
    2. The court of appeals did not ignore Few v. State, 230 S.W.3d 184 (Tex.
       Crim. App. 2007). .................................................................................................... 17
    3. No court has ever held that an “application for appointment of counsel” in
       the “trial of the charge pending,” alone, is a sufficient notice of appeal. ...... 19
    4. The pronouncement of sentence is the appealable event—not the signing of
       the written judgment. ............................................................................................. 23
    5. The trial court certified that, on the day sentence was pronounced in open
       court, Harkcom was informed of her rights concerning an appeal. .............. 25
    6. If this Court holds Harkcom’s application for court-appointed counsel to be
       sufficient, then practically any language contained within any type of
       document could serve as a notice of appeal. ..................................................... 26
    7. Harkcom’s argument that the notice of appeal, filed seven days past the
       deadline, was an implied motion for extension under Rule 26.3 of the Texas
       Rules of Appellate Procedure .................................................................................. 28
         7.1        This Court should not consider this issue because it was neither
                    considered by the court of appeals nor included in Harkcom’s
                    petition for discretionary review. .............................................................. 28



                                                                    2
        7.2          Even so, this Court should not overrule Olivo v. State, 918 S.W.2d 519
                     (Tex. Crim. App. 1996) or ignore Rule 26.3’s plain language. ............. 29

        7.3          Harkcom is not without access to the appellate courts as she may still
                     file an application for a writ of habeas corpus. ....................................... 31

Conclusion ............................................................................................................................ 34
Prayer..................................................................................................................................... 35
Certificate of Word Count ............................................................................................... 36
Certificate of Service .......................................................................................................... 36




                                                                      3
                                                    Index of Authorities


Texas Court of Criminal Appeals Cases
Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012)..................................... 19, 30
Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) ............................................. 24
Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988)............................................... 25
Ex parte Caldwell, 383 S.W.2d 587 (Tex. Crim. App. 1964)........................................ 33
Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002) ......................................... 24
Farrell v. State, 864 S.W.2d 501 (Tex. Crim. App. 1993). ............................................ 29
Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007) ............................... 7, 17, 18, 28
Gonzales v. State, 421 S.W.3d 674 (Tex. Crim. App. 2014) ........................................ 18
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992) ........................................ 16
Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) ....................................... passim
Schute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988)............................................... 19
Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (per curiam) ..................... 14
Taylor v. State, 424 S.W.3d 39 (Tex. Crim. App. 2014) ............................................... 18


Texas Supreme Court Cases

Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003)........................................................ 12, 28
Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) ..............................................12, 27, 28


Texas Courts of Appeals Cases

Alejandro v. State, No. 14-06-00539-CR, 2006 WL 2074819 (Tex. App.Houston
   [14th Dist.], Jul. 27, 2006, pet. ref’d) (mem. op., not designated for publication)
   ............................................................................................................................................ 21
Clark v. State, 287 S.W.3d 355 (Tex. App.—Texarkana 2009, no pet.) ............. 20, 22
Cooper v. State, 917 S.W.2d 474 (Tex. App.—Fort Worth 1996, pet. ref’d) .......... 21
Currie v. State, No. 09-06-225-CR, 2006 WL 2506419 (Tex. App.—Beaumont,
   Aug. 30, 2006, no pet.) (mem. op., not designated for publication) ..................... 21
Hall v. State, No. 11-05-00222-CR, 2006 WL 944647 (Tex. App.—Eastland, Apr.
   13, 2006, pet. ref’d) (mem. op., not designated for publication) .......................... 22



                                                                       4
Harkcom v. State, __ S.W.3d __, No. 02-12-00576-CR, 2014 WL 4923003 (Tex.
   App.Fort Worth Oct. 2, 2014, pet. granted)...................................... 8, 16, 19, 26
Jarrels v. State, No. 01-01-00721-CR, 2001 WL 1301636 (Tex. App.—Houston
   [1st Dist.], Oct. 25, 2001, no pet.) (mem. op., not designated for publication) 21
Lair v. State, 321 S.W.3d 158 (Tex. App.Houston [1st Dist.] 2010, pet. ref’d,
   untimely filed) .................................................................................................................. 32
Massey v. State, 759 S.W.2d 18 (Tex. App.Texarkana 1988, no pet.) .................. 22
Rivera v. State, 940 S.W.2d 148 (Tex. App.—San Antonio 1996, no pet.) ............... 21
Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio 2008, no pet.)...... 21, 27
Williford v. State, 909 S.W.2d 604, 605 (Tex. App.—Austin 1995, no pet.)............. 21

Constitutional Provision
TEX. CONST. art. V, §§ 1, 6 ................................................................................................. 14


Statute
TEX. GOV’T CODE ANN. § 22.201 (West 2004 & Supp. 2014) .................................... 14

Rules
TEX. R. APP. P. 21.4(a) ......................................................................................................... 15
TEX. R. APP. P. 25.2(c)(2) .................................................................................................... 15
TEX. R. APP. P. 26.2(a) .................................................................................................. 14, 23
TEX. R. APP. P. 26.3 .............................................................................................................. 30

Treatise
43A George E. Dix & Robert O. Dawson, Criminal Practice and Procedure §
  43.251a (2d ed. Supp. 2005) (Dix & Dawson) .......................................................... 18




                                                                   5
                       Identity of Parties and Counsel


The parties to the trial court’s judgment are the State of Texas and Patricia
Elizabeth Harkcom.

The trial judge was the Honorable Ralph Walton Jr.

Counsel for Harkcom at trial was Andrew Ottaway, P.O. Box 1679, Granbury,
Texas 76048.

Counsel for Harkcom on appeal is Richard Mitchell, 211 S. Rusk Street,
Weatherford, Texas 76086.

Counsel for the State at trial was Patrick Berry, 101 North Trinity, Suite 200,
Decatur, Texas 76234.

Counsel for the State on appeal is Megan Chalifoux, Assistant District Attorney,
Hood County, 1200 W. Pearl Street, Granbury, Texas 76048.




                                         6
                              Issue Presented

1.   Did the Court of Appeals disregard the perfection of appeal rules set forth
     in Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007) and Texas Rules
     [sic] of Appellate Procedure 25.2(c)(2)?




                                      7
                    Statement Regarding Oral Argument

      When this Court granted review, it announced that oral argument would

not be permitted.


                           Statement of the Case

      Patricia Elizabeth Harkcom was charged by indictment with the offense of

possession of a controlled substance, methamphetamine, of less than one gram.

(C.R. at 7). The jury found Harkcom guilty of the charged offense and assessed

punishment at 24 months confinement in the State Jail Division of the Texas

Department of Criminal Justice and a $2,250.00 fine. (C.R. at 16, 19). The trial

court sentenced her accordingly on October 2, 2012. (3 R.R. at 134-35).

      The Second Court of Appeals dismissed Harkcom’s appeal on October 2,

2014. Harkcom v. State, __ S.W.3d __, No. 02-12-00576-CR, 2014 WL 4923003

(Tex. App.Fort Worth Oct. 2, 2014, pet. granted). On January 15, 2015, the

court of appeals denied Harkcom’s motion for en banc consideration. This Court

granted Harkcom’s petition for discretionary review on May 20, 2015.




                                       8
                                Statement of Facts

      On October 2, 2012, Harkcom was sentenced in open court to serve a

term of 24 months in the State Jail Division of the Texas Department of Criminal

Justice, and to pay a fine of $2,250.00. (3 R.R. at 1, 135). On October 31, 2012,

Harkcom filed a sworn “Application for Appointment of Counsel.” Harkcom’s

application stated:

      On this 30 day of October, 2012, I have been advised of my right to
      representation by counsel in the trial of the charge pending against
      me. I certify that I am without means to employ counsel of my own
      choosing and I hereby request the court to appoint counsel for me. I
      further certify that all statements in the attached Declaration of
      Financial Inability to Employ Counsel are true and correct.

      (C.R. at 26).

Harkcom attached a declaration to her application stating that she had no funds,

no ability to obtain credit to raise funds, and was not free on bail. (C.R. at 27).

      On the same page, but below Harkcom’s sworn application, was a

proposed “Order Appointing/Denying Counsel.” (C.R. at 26). On October 31,

2012, the trial judge signed the proposed Order and appointed counsel. (C.R. at

26). The words, “ON APPEAL” were written on the Order and the word,

“APPEAL” at the top of the page above Harkcom’s application. (C.R. at 26). That

same day, the trial court also signed the Judgment of Conviction by Jury. (C.R. at

21-22).



                                           9
      On November 8, 2012, appointed counsel filed five documents:

      (1)    Written Designation of Matters for Inclusion in Reporter’s Record;

      (2)    Written Designation Specifying Matters For Inclusion in Clerk’s
             Record;

      (3)    Motion for New Trial and Motion in Arrest of Judgment;

      (4)    Notice of Appeal; and

      (5)    a proposed Order for a Setting on the Motion for New Trial and
             Motion in Arrest of Judgment.

      (C.R. at 28-35).

      On December 3, 2012, a hearing was held on Harkcom’s motion for new

trial. (4 R.R. at 1, 6). Even though the motion for new trial stated that it was not

timely, neither side brought this to the trial court’s attention at the hearing. (C.R.

at 32). Whether Harkcom desired to appeal from the judgment and whether she

filed a timely notice of appeal were also not discussed at the hearing. After

receiving testimony from Harkcom, trial counsel, and one other witness, the trial

court denied Harkcom’s motion for new trial. (4 R.R. at 6-7, 47-48).

      On January 22, 2013, the Second Court of Appeals sent a letter to

Harkcom’s counsel stating that it was concerned it may not have jurisdiction over

the appeal. The court of appeals noted that the notice of appeal was due on

November 1, 2012, but was not filed until November 8, 2012. Harkcom’s counsel

responded that Harkcom’s application for appointment of counsel gave sufficient


                                         10
notice of appeal under Texas Rule of Appellate Procedure 25.2(c)(2). On

February 25, 2013, the court of appeals sent a letter stating that it considered

counsel’s response and determined it would continue the appeal. Both parties

then filed their briefs on Harkcom’s complaint that she received ineffective

assistance of counsel during her trial. On July 3, 2014, the court of appeals again

sent a letter stating that it remained concerned about its jurisdiction and asked

that the parties come prepared to discuss its concerns at oral argument on July 9,

2014. Following oral argument, the court of appeals issued its opinion dismissing

Harkcom’s appeal.




                                        11
                        Summary of State’s Argument

      The court of appeals correctly dismissed this appeal because Harkcom filed

her notice of appeal seven days after it was due and requested no extension of

time. Harkcom’s “Application for Appointment of Counsel” made no mention of

an appeal or her desire to appeal; instead, her application referenced the “trial of

the charge pending” and stated, “I hereby request the court to appoint counsel

for me.” Because Harkcom’s application for appointment of counsel did not show

her desire to appeal, it was insufficient to constitute a notice of appeal under the

Rules of Appellate Procedure. Because Harkcom did not timely file a notice of

appeal, she did not properly invoke the jurisdiction of the court of appeals.

      Harkcom also argues that her notice of appeal filed in the trial court seven

days past the deadline included an “implied” motion for extension of time.

Harkcom asks this Court to adopt the Texas Supreme Court’s view that a motion

for extension of time is implied when appellant, acting in good faith, files a notice

of appeal beyond the time permitted by Rule 26.1, but within the 15-day period in

which an appellant would be entitled to move to extend the filing deadline under

Rule 26.3. The court of appeals did not address this issue and this Court did not

grant review. Even if this Court considers Harkcom’s argument, this Court should

not overrule its decision in Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996),

because doing so ignores the plain language of Rule 26.3. Moreover, Harkcom’s


                                         12
equitable argument ignores the fact that criminal appellants may seek an out-of-

time appeal under an Article 11.07 application for writ of habeas corpus when no

motion for extension of time is filed, as occurred in this case.




                                         13
                                    Argument


1.     Harkcom did not comply with Rules 21.4, 25.2, 26.2, or 26.3 of the
       Texas Rules of Appellate Procedure.

       The rules of appellate procedure do not define a court of appeals’s

jurisdiction; the Texas Constitution does. See TEX. CONST. art. V, §§ 1, 6; TEX.

GOV’T CODE ANN. § 22.201 (West 2004 & Supp. 2014). However, a court of

appeals may have jurisdiction to hear a case but be unable to exercise jurisdiction

because it has not been properly invoked by compliance with the appropriate

appellate rules. Rule 26.2 of the Texas Rules of Appellate Procedure provides

specific periods of time in which a party may file its notice of appeal and is one of

many procedural rules a party must follow in order to successfully invoke a court

of appeals’s jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim.

App. 1996) (parties must follow rules to invoke jurisdiction); see also Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam) (reaffirming

applicability of Olivo).

       A defendant’s notice of appeal is timely if filed within 30 days after the day

sentence is imposed or suspended in open court, or within 90 days after the day

sentence is imposed or suspended in open court if the defendant timely files a

motion for new trial. TEX. R. APP. P. 26.2(a). A motion for new trial is timely if

filed no later than 30 days after the date when the trial court imposes or suspends


                                         14
sentence in open court. TEX. R. APP. P. 21.4(a). A notice of appeal “is sufficient if it

shows the party’s desire to appeal from the judgment or other appealable order.”

TEX. R. APP. P. 25.2(c)(2).

       In this case, Harkcom did not timely file a motion for new trial.1 As a result,

Harkcom had 30 days from the day sentence was imposed in open court to file

her notice of appeal. Because sentence was imposed in open court on October 2,

2012, her notice of appeal was due on November 1, 2012. But the only document

Harkcom filed in the trial court within this 30-day window was an “application for

appointment of counsel.” (C.R. at 26). Harkcom’s application stated:

       On this 30 day of October, 2012, I have been advised of my right to
       representation by counsel in the trial of the charge pending against me.
       I certify that I am without means to employ counsel of my own
       choosing and I hereby request the court to appoint counsel for me. I
       further certify that all statements in the attached Declaration of
       Financial Inability to Employ Counsel are true and correct.

       (C.R. at 26) (emphasis added).

       Harkcom asks this Court to consider her request for court-appointed

counsel as the functional equivalent of a notice of appeal. But in her application,

Harkcom never mentioned anything about an appeal, let alone her desire to

appeal. Nor did Harkcom’s application mention a judgment or other appealable

order from which she could appeal, as her application was in regards to a “trial of


1
 Harkcom’s motion for new trial was filed on November 8, 2012, seven days after it was due.
(C.R. at 32).


                                             15
the charge pending.” (C.R. at 26). Counsel was requested for “trial” at a time

when trial filings could be filed.

      The only mention of an appeal made within the 30-day deadline came from

the trial judge2not Harkcomwhen he noted, “APPEAL” and “ON APPEAL”

on the application and order appointing counsel, respectively. (C.R. at 26).

Harkcom argues that because the trial judge thought she wanted to appeal her

case, so should this Court. See Appellant’s Brief at 13-15. But it is the appellant

that must indicate his or her desire to appeal—not the trial court. It is true that

an otherwise insufficiently specific request will be considered sufficient if it is clear

that the trial court understood it, but there has to be some basis in the record.

See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992). The trial

court should not speak for the defendant. Absent an agreement to the judge’s

notations, they cannot serve as a proper notice of appeal.

      Because Harkcom’s “application for appointment of counsel” gave no

indication that she desired to appeal her case, it was not a notice of appeal. And

because Harkcom did not timely file a notice of appeal, she did not properly



2
 The court of appeals assumed these notations were made by the trial judge. See Harkcom,
2014 WL 4923003, at *1 (“On its order, the judge handwrote “ON APPEAL” to the end of typed
words stating “ORDER APPOINTING COUNSEL.”). Harkcom also assumes that these notations
were made by the trial court. There is nothing in the record to show who made these
notations, but the State does not contest the assumption made by the court of appeals and
Harkcom.


                                           16
invoke the court of appeals’s jurisdiction. The court of appeals was correct to

dismiss her appeal.


2.    The court of appeals did not ignore Few v. State, 230 S.W.3d 184
      (Tex. Crim. App. 2007).

      Harkcom argues that the court of appeals ignored this Court’s decision in

Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007), when it dismissed her

appeal. In Few, the defendant filed his pro se notice of appeal in the wrong cause

number. 230 S.W.3d at 185-86. The State originally indicted the appellant in one

cause number and re-indicted him two years later in a second cause number. Id.

at 185. After being tried and convicted in the second cause number, the appellant

mistakenly filed his pro se notice of appeal in the original cause number. Id. at 186.

This Court held that the appellant’s notice of appeal was sufficient to invoke the

jurisdiction of the court of appeals. Id. at 190. As a result, the court of appeals

should have given the appellant a reasonable opportunity to correct the defect in

his timely filed notice of appeal before dismissing the appeal. Id.

      The facts in Few are distinguishable from Harkcom’s case. In Few, the

appellant actually filed a timely notice of appeal showing his desire to appeal from

the judgment; he just filed it in the wrong cause number. In Harkcom’s case, there

was no timely filed notice of appeal. Harkcom did not just leave off the correct

cause number like Few did, she failed entirely to mention the fact that she wanted


                                          17
to appeal her case. Harkcom’s act of filing an application for court-appointed

counsel instead of an actual notice of appeal was not a harmless procedural defect

like in Few.

       Few simply recognizes that defective notices of appeal may be amended at

any time before the appealing party’s brief is filed. Appellants must still show their

desire to appeal by timely filing a notice of appeal. See Few, 230 S.W.3d at 189

(“The rules thus ‘retain the requirement of notice of appeal. But they now permit

amendment to cure apparently any defects in notices of appeal.’”) (quoting 43A

George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 43.251a

at 192 (2d ed. Supp. 2005) (Dix & Dawson)). The court of appeals recognized

Few’s holding and properly considered its application in Harkcom’s case:

       Finally, we recognize that in recent years, the court of criminal
       appeals has explained that we should liberally construe rules related
       to the perfection of an appeal. Few v. State, 230 S.W.3d 184, 190
       (Tex. Crim. App. 2007). Nonetheless, the court’s cases do not
       dispense with the requirement of a bona fide notice of appeal. See id.
       at 189-90 (noting that the rules “retain the requirement of notice of
       appeal” but holding that an unquestioned notice of appeal was
       sufficient to appeal the defendant’s conviction although the defendant
       filed the notice of appeal under a wrong cause number); see also
       Taylor v. State, 424 S.W.3d 39, 41, 44-46 (Tex. Crim. App. 2014)
       (concluding that an unquestioned notice of appeal was sufficient to
       invoke jurisdiction although it was mistakenly sent to a court of
       appeals and later forwarded to a trial court); [Gonzales v. State, 421
       S.W.3d 674, 674 (Tex. Crim. App. 2014)] (holding that an
       unquestioned notice of appeal in one cause number was sufficient to
       bring appeals in three related cases). Despite liberal construction of
       the rules, the court of criminal appeals has not dispensed with them


                                         18
      altogether; it still dismisses appeals when there is no timely notice of
      appeal. See [Castillo v. State, 369 S.W.3d 196, 202-03 (Tex. Crim. App.
      2012); Schute v. State, 744 S.W.2d 96, 97 (Tex. Crim. App. 1988)].

      Harkcom, 2014 WL 4923003, at *4.

      In its decision, the court of appeals discussed Few, correctly determined

that a notice of appeal is still required under the law to invoke the jurisdiction of

a court of appeals, and rightly held that Harkcom’s application for appointment of

counsel was inadequate to serve as a notice of appeal. So, contrary to Harkcom’s

argument, the court of appeals did not improperly ignore Few in reaching its

decision.


3.    No court has ever held that an “application for appointment of
      counsel” in the “trial of the charge pending,” alone, is a sufficient
      notice of appeal.

      What Harkcom asks this Court to do is unprecedented. Harkcom fails to

cite any case recognizing an application for court-appointed counsel in the “trial of

the charge pending,” alone, to be a sufficient notice of appeal. In Jones v. State, this

Court held appeal had not been timely perfected when trial counsel filed a motion

to withdraw and request for court-appointed counsel with an affidavit of

indigence within 30 days of sentencing. 98 S.W.3d 700, 702 (Tex. Crim. App.

2003). This Court held the documents put the trial court on notice of the

defendant’s desire to appeal, but did not hold that the documents functioned as a



                                          19
notice of appeal. Id. at 702-03. This Court ordered an out-of-time appeal because

trial counsel failed to perform his responsibilities when he did not

contemporaneously file a pro se written notice of appeal with the motion to

withdraw. Id. at 703-04.

      This Court also held that the trial court erred when it failed to appoint

appellate counsel because the motion to withdraw along with the request for

court-appointed counsel on appeal demonstrated the appellant’s desire to appeal.

Id. at 703. The motion in Jones stated that appellant requested appointed counsel

“for the purpose of a motion for new trial, appeal and . . . a copy of the court

reporter’s notes.” Id. In the attached affidavit, the appellant attested to his inability

“to afford counsel on a motion for new trial and/or appeal [or] to pay for the

court reporter’s notes [in his case].” Id. Jones is distinguishable because Harkcom’s

trial counsel never filed a motion to withdraw like Jones’s trial counsel did. And

the language used in Jones’s request for appointed counsel specifically mentioned

that he was requesting counsel for the purpose of an appeal. Harkcom’s

application for court-appointed counsel did not contain the same language and

instead referred to a “trial of the charge pending.” (C.R. at 26).

      Many courts of appeals in Texas have held requests for court-appointed

counsel to be inadequate to serve as a notice of appeal. See Clark v. State, 287

S.W.3d 355, 356 (Tex. App.—Texarkana 2009, no pet.) (post-conviction


                                           20
application for court-appointed counsel not a notice of appeal); Roberts v. State,

270 S.W.3d 662, 665 (Tex. App.—San Antonio 2008, no pet.) (“Statement of

Inability to Afford Counsel” not a notice of appeal); Currie v. State, No. 09-06-225-

CR, 2006 WL 2506419, at *1 (Tex. App.—Beaumont Aug. 30, 2006, no pet.)

(mem. op., not designated for publication) (pauper’s oath not a notice of appeal);

Alejandro v. State, No. 14-06-00539-CR, 2006 WL 2074819, at *1 (Tex.

App.Houston [14th Dist.] Jul. 27, 2006, pet. ref’d) (mem. op., not designated for

publication) (pauper’s oath and designation of record on appeal not a notice of

appeal); Jarrels v. State, No. 01-01-00721-CR, 2001 WL 1301636, at *1 (Tex.

App.—Houston [1st Dist.] Oct. 25, 2001, no pet.) (mem. op., not designated for

publication) (request for court-appointed counsel not a notice of appeal); Cooper

v. State, 917 S.W.2d 474, 477 (Tex. App.—Fort Worth 1996, pet. ref’d) (order

appointing counsel not a notice of appeal); Rivera v. State, 940 S.W.2d 148, 149

(Tex. App.—San Antonio 1996, no pet.) (pauper’s oath and request for appellate

counsel not a notice of appeal); Williford v. State, 909 S.W.2d 604, 605 (Tex.

App.—Austin 1995, no pet.) (affidavit of indigence and request for appointment of

counsel on appeal not a notice of appeal).

      The cases cited by Harkcom are distinguishable because the appellants in

those cases did considerably more to show their desire to appeal than Harkcom

did. In Hall v. State, for example, the appellant filed a pro se “Motion for


                                         21
Appointment of a Court Appointed Appellate Attorney.” No. 11-05-00222-CR,

2006 WL 944647, at *1 (Tex. App.—Eastland Apr. 13, 2006, pet. ref’d) (mem. op.,

not designated for publication) (emphasis added). At the hearing on Hall’s motion

the State acknowledged that appellant “did appear to evidence a desire to take his

case up on appeal.” Id. In this case, Harkcom requested court-appointed counsel

for her trial, rather than on appeal. And while there was a hearing on Harkcom’s

untimely motion for new trial, neither side mentioned anything about Harkcom’s

desire to appeal. Even if Hall were persuasive authority, the facts are

distinguishable from Harkcom’s case.

      Harkcom also cites Massey v. State, 759 S.W.2d 18 (Tex. App.Texarkana

1988, no pet.). There, the Texarkana Court of Appeals held that a written

request for a copy of the record and for appointment of an attorney for

representation on appeal served as written notice of appeal. Massey v. State, 759

S.W.2d 18, 19 (Tex. App.Texarkana 1988, no pet.). The Texarkana Court cited

no authority in support of its conclusion. Regardless, Massey did considerably

more to indicate his desire to appeal than did Harkcom. Compare Clark, 287

S.W.3d at 356 (“An affidavit of indigence and request for counsel alone cannot

serve as the notice of appeal or as a motion for extension of time.”).

      The lack of authority supporting Harkcom’s argument provides further

reason for this Court to affirm the court of appeals’s decision.


                                         22
4.    The pronouncement of sentence is the appealable event—not the
      signing of the written judgment.

      Harkcom argues that her desire to appeal is evident from the fact the

judgment was signed on the same day she filed her application for appointment of

counsel, but this analysis is misguided. Harkcom seems to argue that she was

unable to express her desire to appeal until after the trial court signed the

judgment. Harkcom opines that requiring a defendant to express a desire to

appeal before the written judgment is signed is “Kafka-esque.” See Appellant’s

Brief at 13. Regardless of her view, it is clear what is required by the Texas Rules

of Appellate Procedure.

      Rule 26.2(a)(1) plainly requires that the notice of appeal be filed within 30

days after the day sentence is imposed in open court. TEX. R. APP. P. 26.2(a)(1). Thus,

the appellate time table begins with the pronouncement of sentence—not the

written judgment. The appealable event is the pronouncement of sentence:

      A trial court’s pronouncement of sentence is oral, while the
      judgment, including the sentence assessed, is merely the written
      declaration and embodiment of that oral pronouncement. When the
      oral pronouncement of sentence and the written judgment vary, the
      oral pronouncement controls. The rationale for this rule is that the
      imposition of sentence is the crucial moment when all of the parties
      are physically present at the sentencing hearing and able to hear and
      respond to the imposition of sentence. Once he leaves the
      courtroom, the defendant begins serving the sentence imposed.
      Thus, “it is the pronouncement of sentence that is the appealable
      event, and the written sentence or order simply memorializes it and
      should comport therewith.”


                                          23
       Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002) (quoting

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998)) (internal citations

omitted).

       The pronouncement of sentence was the pivotal moment in Harkcom’s

journey to the court of appeals—not the signing of the written judgment. The

written judgment simply reflected what occurred when sentence was pronounced

in open court. The fact that the trial court signed the written judgment on the

same day Harkcom filed her application for appointment of counsel has nothing to

do with whether Harkcom desired to appeal her case. And Harkcom’s assertion

that she received the written judgment the same day she signed her application

for appointment of counsel is unsupported by the record.3 See Appellant’s Brief at

13. Even if a written judgment were required to trigger the appellate clock,

Harkcom’s request for counsel may have been for the purpose of filing a motion

for new trial. Because the oral pronouncement is the appealable event, Harkcom’s

argument regarding the written judgment is mistaken.




3
 Harkcom’s application for appointment of counsel signed October 30, 2012 and filed October
31, 2012. (C.R. at 26). Judgment of Conviction by Jury signed by trial court October 31, 2012.
(C.R. at 22). Harkcom’s right thumbprint affixed to Judgment November 14, 2012. (C.R. at 25).


                                             24
5.     The trial court certified that, on the day sentence was
       pronounced in open court, Harkcom was informed of her rights
       concerning an appeal.

       Harkcom asserts that, following her conviction, her attorney “abandoned”

her and she was without guidance on how to appeal her case. See Appellant’s

Brief at 7, 13, 15-16. Harkcom seems to argue that this somehow proves that her

application for appointment of counsel served as a notice of appeal. But, whether

or not this allegation supports her argument, it is unsupported by the record.

       As this Court held in Jones, it was trial counsel’s duty to advise Harkcom of

her appellate rights:

       [T]rial counsel, retained or appointed, has the duty, obligation and
       responsibility to consult with and fully to advise his client concerning
       meaning and effect of the judgment rendered by the court, his right
       to appeal from that judgment, the necessity of giving notice of appeal
       and taking other steps to pursue an appeal, as well as expressing his
       professional judgment as to possible grounds for appeal and their
       merit, and delineating advantages and disadvantages of appeal.

       See Jones, 98 S.W.3d at 702-03 (quoting Ex parte Axel, 757 S.W.2d 369, 374

(Tex. Crim. App. 1988)).

       Trial counsel must first ascertain whether the defendant wishes to appeal.

Id. at 703. The decision to appeal lies solely with the defendant. Id. If the

defendant does not wish to appeal, trial counsel’s representation ends. Id. If the

defendant decides to appeal, the attorney must ensure that written notice of

appeal is filed with the trial court. Id.


                                            25
      There is nothing in the record to show that trial counsel did not fulfill these

duties. To the contrary, the record seems to show that trial counsel did, in fact,

advise Harkcom of her appellate rights because Harkcom, trial counsel, and the

trial court signed a certification that trial counsel fulfilled his duties and that

Harkcom was aware of her rights concerning an appeal. (C.R. at 20). As the court

of appeals noted:

      After the trial court sentenced appellant on October 2, on the same
      day, it certified her right to appeal. Appellant and her trial counsel
      signed the certification, which recited that appellant had been
      informed of her rights concerning an appeal.

      Harkcom, 2014 WL 4923003, at *1.


6.    If this Court holds Harkcom’s application for court-appointed
      counsel to be sufficient, then practically any language contained
      within any type of document could serve as a notice of appeal.

      The      requirement    for    giving   notice    of    appeal    is   simple.

Criminal defendants need only file a notice of appeal showing their desire to

appeal from the judgment within 30 days of the pronouncement of sentence in

open court. Harkcom’s argument on appeal complicates this straightforward

requirement.

      If asking “the court to appoint counsel for me” evidences a desire to appeal,

then practically any language contained in any type of document filed in the trial

court could constitute a notice of appeal. As the San Antonio Court of Appeals


                                        26
warned, courts will be “saddled with the added responsibility of exploring every

nook and cranny of the record—even in unlikely places—to seek out language

that might be stretched to conceivably serve as a ‘notice of appeal.” Roberts, 270

S.W.3d at 665 (internal quotations omitted). And similarly, the State will be left to

guess whether a criminal defendant has perfected an appeal.

      The extended timeline of this case shows the result of failing to follow

simple rules. All of the parties involved in this trial must await this Court’s opinion

on a matter that could have been avoided, if intended, by a simple heading.

“Under any number of circumstances, time plays a critical role in justice.” Verburgt

v. Dorner, 959 S.W.2d 615, 618 (Tex. 1997) (Enoch, J., dissenting).

      Ultimately, adopting Harkcom’s argument leads to a system difficult to

administer and opens the door to a whole host of other filings constituting a

“desire to appeal” even when those filings say nothing about appealing anything.

Finding Harkcom’s application for court-appointed counsel sufficient is

tantamount to dispensing with the necessity of filing any such notice. Such a

holding would be contrary to the Rules of Appellate Procedure and would invite

unnecessary and unfair delay.




                                          27
7.    Harkcom’s argument that the notice of appeal, filed seven days
      past the deadline, was an implied motion for extension under
      Rule 26.3 of the Texas Rules of Appellate Procedure

      The Supreme Court of Texas has held, in civil cases, “a motion for

extension of time is implied” when appellant, acting in good faith, files notice of

appeal beyond time permitted by Rule 26.1, but within the 15-day period in which

appellant would be entitled to move to extend the filing deadline under Rule 26.3.

Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex. 2003); see Verburgt v. Dorner, 959

S.W.2d 615, 615 (Tex. 1997). This equitable rule would benefit Harkcom.

      Harkcom recognizes that adopting it would require this Court to overrule

its decision in Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996). Because

review was not granted on this issue, this Court should decline to consider

Harkcom’s argument. But even if the Court finds that review is appropriate, this

Court should overrule Harkcom’s point of error and reject the Texas Supreme

Court’s holdings in Verburgt and Hone.


      7.1   This Court should not consider this issue because it was
            neither considered by the court of appeals nor included in
            Harkcom’s petition for discretionary review.

      When this Court granted Harkcom’s petition for discretionary review,

review was limited to whether the court of appeals improperly disregarded this

Court’s decision in Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007) and Rule



                                         28
25.2(c)(2) of the Texas Rules of Appellate Procedure when it held that Harkcom’s

“application for appointment of counsel” did not evidence her desire to appeal

from the judgment in her case. 4 No mention was made of whether Harkcom’s

notice of appeal filed on November 8, 2012, seven days after it was due, properly

invoked the appellate court’s jurisdiction as an implied motion for extension

under Rule 26.3. Because this Court’s review is limited to decisions by the courts

of appeals, it has held a party “may not expect this Court to consider a ground

for review that does not implicate a determination by the court of appeals of a

point of error presented to that court in orderly and timely fashion.” Farrell v.

State, 864 S.W.2d 501, 502 (Tex. Crim. App. 1993). Because Harkcom raises a

new point of error in her briefone that this Court did not grant reviewthis

Court should not consider its merits.


        7.2 Even so, this Court should not overrule Olivo v. State, 918
            S.W.2d 519 (Tex. Crim. App. 1996) or ignore Rule 26.3’s
            plain language.

       Under Texas Rule of Appellate Procedure 26.3, “[t]he appellate court may

extend the time to file the notice of appeal if, within 15 days after the deadline for

filing the notice of appeal, the party: (a) files in the trial court the notice of

appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b).

4
 See Appellant’s Petition for Discretionary Review at 6 (“The Appellant’s argument is simple.
Considering the totality of the circumstances in this case, did the Appellant make a bona fide
attempt to invoke the appellate court’s jurisdiction when she filed her application?”).


                                               29
TEX. R. APP. P. 26.3 (emphasis added). In this case, Harkcom filed a notice of

appeal in the trial court seven days after it was due, (C.R. at 34), but never filed a

motion for extension of time in the court appeals explaining the need for the

extension.

      Following Harkcom’s argument and the Supreme Court’s holdings in

Vergburgt and Hone simply ignores the rule’s requirement that both a notice of

appeal and a motion for extension of time reasonably explaining the need for the

extension must be filed. The plain, unambiguous language of Rule 26.3 speaks to

the filing of a motion to extend time in the court of appeals in addition to the

notice of appeal filed in the trial court. This Court has always recognized Rule

26.3’s dual requirement. In Olivo, this Court held, “[w]hen a notice of appeal is

filed within the fifteen-day period but no timely motion for extension of time is

filed, the appellate court lacks jurisdiction.” 918 S.W.2d at 522. This Court

characterized the lack of a motion for extension of time as a jurisdictional defect

rather than a “mere procedural irregularity.” Id. at 522. And, more recently, in

Castillo v. State, this Court re-affirmed Rule 26.3’s requirements:

      . . . Rule 26.3 provides a measure of relief for the inadvertent
      slowpoke. It permits an extension of time after the deadline to file
      notice of appeal, if, within fifteen days after the deadline, the party
      files (a) the notice of appeal in the trial court; and (b) a motion for
      extension of time under Rule 10.5(b)(2) in the court of appeals.

      369 S.W.3d 196, 201-02 (Tex. Crim. App. 2012).


                                          30
      No mention would be made of a separate motion in Rule 26.3 if a notice of

appeal filed in the trial court were all that was required to extend the time to

perfect an appeal during the 15 days following the deadline. And if only a notice of

appeal were required, then the Rules of Appellate Procedure’s 30-day deadline to

file a notice of appeal under Rule 26.2 would be meaningless because appellants

would actually have 45 days, provided they acted in good faith filing their notice

beyond the initial 30-day window. Until and unless this Court and the Supreme

Court of Texas change the language of Rule 26.3, a separate motion to extend

time filed in the appellate court is still required to perfect an appeal within 15 days

following Rule 26.2’s deadline for filing the notice of appeal.


      7.3    Harkcom is not without access to the appellate courts as
             she may still file an application for a writ of habeas corpus.

      It is unfortunate that Harkcom’s appellate counsel was appointed the day

before the notice of appeal was due and that counsel was notified of his

appointment on the day the notice of appeal was due and waited seven days to

file the notice of appeal. This misfortune, of course, assumes that Harkcom

communicated her desire to appeal to her appointed counsel in a timely manner.

Counsel may not have been an “inadvertent slowpoke,” but the additional time

provided by Rule 26.3 is available to all who need it. In any event, no motion for




                                          31
extension of time was filed under Rule 26.3 and no explanation was given for why

the notice of appeal could not be timely filed.

      But even with all of these missed deadlines, Harkcom is still not without a

remedy, as she may be able to claim ineffective assistance of counsel in an Article

11.07 application for writ of habeas corpus. Because of this potential solution,

Harkcom is not without access to the appellate courts and any perceived sense of

unfairness in Olivo in light of the Texas Supreme Court’s holdings in Verburgt and

Hone is resolved.

      One may argue, as Justice Sharp did in Lair v. State, 321 S.W.3d 158, 160

(Tex. App.Houston [1st Dist.] 2010, pet. ref’d, untimely filed) (Sharp, J.,

concurring), that an application for writ of habeas corpus requesting an out-of-

time appeal is cumbersome, costly, and inefficient. But would it be more

cumbersome, costly, and inefficient than what has occurred in this case? Harkcom

was sentenced to two years in the State Jail in October 2012 and has,

presumably 5, watched the merits of her argument on appeal go unresolved as the

appellate courts consider a jurisdictional matter, long after she has discharged her

sentence. It seems the solution to ensuring that criminal appellants are given fair

and timely access to the appellate courts is to simply follow the Rules of Appellate


5
  Harkcom’s whereabouts and involvement in this appeal are unclear, as counsel lists her
address as “unknown” in his briefings before the Court. See Appellant’s Petition for
Discretionary Review at iii; Appellant’s Brief at ii.


                                          32
Procedure and to allow them to seek out-of-time appeals under an Article 11.07

application for writ of habeas corpus when counsel fails to follow those rules.

       Because a separate motion for extension of time was never filed during the

15-day window following the deadline to perfect her appeal, Harkcom simply did

not do what the Rules of Appellate Procedure require. And “[j]urisdiction of a

court must be legally invoked, and when not legally invoked, the power of the

court to act is as absent as if it did not exist.” Olivo, 918 S.W.2d 519, 523 (quoting

Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964)). Thus, under the

plain language of Rule 26.3, Harkcom’s notice of appeal, filed seven days after it

was due, did not invoke the appellate court’s jurisdiction. As a result, the court of

appeals was without power to act except to dismiss the case for lack of

jurisdiction.

       In sum, even if this Court considers Harkcom’s argument, this Court

should not adopt the Texas Supreme Court’s reasoning in Verburgt and Hone

because doing so improperly extends the court of appeals’s jurisdiction. This

Court should instead follow its holding in Olivo and conclude that the court of

appeals lacked jurisdiction to consider Harkcom’s appeal because, even though

Harkcom filed a notice of appeal in the trial court within the 15-day grace period

allowed under Rule 26.3, she never filed a motion to extend time in the court of

appeals explaining the need for the extension.


                                         33
                                    Conclusion


      Harkcom failed to invoke the jurisdiction of the court of appeals because

she did not timely file a notice of appeal. Her notice of appeal was filed seven days

past the deadline. And her application for appointment of counsel, filed before the

deadline, did not evidence her desire to appeal from the judgment, and thus, was

insufficient to constitute a notice of appeal. As a result, the court of appeals had

no option but to dismiss Harkcom’s appeal.

      Because review was not granted, this Court should not consider the

argument Harkcom makes for the first time in her brief that her notice of appeal

filed in the trial court seven days past the deadline included an “implied” motion

for extension of time. Even if this Court does consider this issue, this Court has

repeatedly affirmed the plain language of Texas Rule of Appellate Procedure 26.3

and should decline the invitation to ignore it.

      As this Court held in Olivo, Rule 26.3 means exactly what it says. When no

notice of appeal is filed within 30 days of the pronouncement of sentence and no

motion for extension explaining the need for the extension is filed during the 15-

day grace period that follows, a court of appeals is without jurisdiction to

consider the appeal. The Texas Supreme Court’s holdings in Verburgt and Hone

ignore Rule 26.3’s plain language and should not be extended to criminal cases.

Even though Harkcom filed a notice of appeal during the 15-day grace period, the

                                         34
court of appeals was without jurisdiction to consider her appeal because she

failed to file a motion for extension of time. For these reasons, this Court should

affirm the court of appeals’s dismissal of Harkcom’s appeal.


                                     Prayer

      The State prays that this Court deny relief to Harkcom and affirm the

decision of the court of appeals.


                                      Respectfully submitted,


                                      /s/ Megan Chalifoux
                                      Robert T. Christian
                                      District Attorney
                                      Hood County, Texas

                                      Megan Chalifoux
                                      Assistant District Attorney
                                      Hood County District Attorney’s Office
                                      State Bar No. 24073674
                                      1200 W. Pearl Street
                                      Granbury, Texas 76048
                                      Phone: (817) 579.3245
                                      Facsimile: (817) 579.3247
                                      da.appellate@co.hood.tx.us

                                      Attorneys for the State




                                        35
                         Certificate of Word Count

       The undersigned attorney certifies that according to the word count
generated in Microsoft Word this document contains 6,307 words, exclusive of
the items excepted by TEX. R. APP. P. 9.4(i)(1).


                                    /s/ Megan Chalifoux
                                    Megan Chalifoux




                            Certificate of Service

      The undersigned attorney certifies that the State’s brief on discretionary
review has been emailed to the following via eFile Texas, on July 14, 2015:

      Richard Mitchell
      Attorney for Appellant Patricia Elizabeth Harkcom
      211 S. Rusk Street
      Weatherford, Texas 76086
      Richard@richardmitchelllaw.com


      Lisa McMinn
      State Prosecuting Attorney
      P.O. Box 13046
      Austin, Texas 78711
      information@spa.texas.gov


                                    /s/ Megan Chalifoux
                                    Megan Chalifoux




                                      36
