


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00316-CR
No. 10-08-00325-CR
 
Larry Donnell Blue,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 85th District Court
Brazos County, Texas
Trial Court Nos. 06-00734-CRM-85
and 06-01295-CRF-85
 

MEMORANDUM  Opinion

 




            Larry Donnell Blue filed his notices of appeal in these cases 102
days after the court imposed sentence.  The Clerk of this Court notified the
parties that these appeals are subject to dismissal for want of jurisdiction
because it appears that the notices of appeal are untimely.  Blue has responded
with a Motion to Reinstate in which he contends the notices of appeal are
timely because they were filed within 30 days after his motions for new trial
would have been overruled by operation of law.  We disagree and will dismiss
these appeals.
            The trial court imposed
sentence in both cases on May 8, 2008.[1] 
Blue timely filed motions for new trial on May 28.  See Tex. R. App. P. 21.4(a).  The trial
court signed an order denying both motions for new trial on June 19, but this
order was not entered on the record until August 19.  Blue filed his notices of
appeal on August 18.
            Blue states that he did
not receive notice of the court’s order denying his motions for new trial until
August 12.[2] 
He suggests that the deadline for his notice of appeal should be calculated
from the date when his motions for new trial would have been overruled by
operation of law—July 22.[3]
 He then cites Rule of Appellate Procedure 26.2(a)(1) for the proposition that
a notice of appeal is not due until thirty days after the entry of an
appealable order.  Id. 26.2(a)(1).
            An order denying a motion
for new trial is not an independently “appealable order” as that term is used
in Rule 26.2(a)(1).  And a trial court’s inaction which allows a motion for new
trial to be overruled by operation of law cannot in any way be described as an
“appealable order” which the court has “entered” as required by this rule.
            Rather, when a criminal
defendant seeks to appeal a judgment of conviction, the deadline for the notice
of appeal is calculated from the date “sentence is imposed or suspended in open
court.”  Id. 26.2(a).  If no motion for new trial is timely filed, the
notice of appeal is due in thirty days.  Id. 26.2(a)(1).  Conversely, if
a motion for new trial is timely filed (regardless of the court’s ruling on
that motion), the notice of appeal is due in ninety days.  Id.
26.2(a)(2).  And these deadlines may be extended if the defendant files an
extension request within fifteen days after the applicable deadline.  Id. 26.3.
Here, because Blue timely filed
motions for new trial in both cases, his notices of appeal were due on or
before August 6.  Id. 26.2(a)(2).  Any extension request would have been
due on or before August 21.  Id. 26.3.  Blue did not file his notices of
appeal until August 18.  He did not file an extension request.  Accordingly, we
deny Blue’s motion to reinstate these appeals and dismiss both appeals for want
of jurisdiction.  See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim.
App. 1998); Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000,
pet. ref’d).
 
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Appeals dismissed
Opinion delivered and
filed October 1, 2008
Do not publish
[CR25]
 




[1]
              Blue was convicted in trial
court cause no. 06-00734-CRM-85 (appellate cause no. 10-08-00316-CR) of
resisting transportation (a misdemeanor) and in trial court cause no.
06-01295-CRF-85 (appellate cause no. 10-08-00325-CR) of evading detention with
a vehicle (a felony).  The trial court imposed sentence in both cases on May 8
and signed the judgment in the misdemeanor case on the same date.  The court
did not sign the judgment in the felony case until May 14.  Nevertheless,
appellate deadlines in criminal appeals are calculated from the date of
imposition of sentence, rather than the date the judgment is signed.  See
Tex. R. App. P. 26.2(a); cf.
id. 26.1 (in civil appeals, appellate deadlines are calculated from the
date the judgment is signed).
 


[2]
              Blue also suggests that the
trial court may not have actually signed the order denying his motions for new
trial until August 12 notwithstanding the notation that the order was signed on
June 19.  As will be seen however, the date the trial court signed this order
is irrelevant for purposes of calculating appellate deadlines.
 


[3]
              Blue says this date would be
July 23, but our calculations show that July 22 is 75 days after the date of
imposition of sentence.  Id. 21.8.



                                     Appellees
 
 
 

From the 170th District Court
McLennan County, Texas
Trial Court # 99-2717-4
 

DISSENTING Opinion

 



      This
is an appeal of a wrongful death and survival suit.  We should reverse and render.  Because the majority does not do so, I
respectfully dissent.
 
 
Procedural Prelude
In the past we have had so few opinions
withdrawn that no particular problems were created if the opinions were
withdrawn by an order separate from the new opinions being issued.  The problem is that over the past year we
have withdrawn numerous opinions, with and without motions for rehearing, and
when on motion for rehearing, with and without requesting responses.  Issuing multiple opinions in the same appeal
creates confusion.  A person can hold in
their hands two opinions from this Court, both certified by the clerk as
authentic, which are not the same.  Our
past practice has been that the latter normally does not reference the
existence of the earlier opinion that is being withdrawn.
          Our
past practice did not present a problem when the issuance of another opinion in
the same case was rarely done.  At least
the problem was manageable.  But due to
the greatly increased frequency of the majority issuing multiple opinions, I
thought it was an appropriate time to adopt the procedure utilized by the Texas
Supreme Court; to include the order, and explanation if needed, withdrawing the
prior opinion as the first paragraph of the new opinion.  See
e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000).
          This
is a simple procedure for the convenience of anyone reading the opinions to
understand, and easily determine which opinion is the Court’s final
opinion.  This process also allows a
researcher, interested in the ultimate disposition, to easily track backwards,
if necessary, to see the development of the final opinion.  Because the majority refuses to provide that
information in its opinion, I do so in this dissenting opinion.
 
 
Prior History of This Appeal
          The
Court’s opinion affirming the trial court’s judgment, the judgment, and Chief
Justice Gray’s dissenting opinion, all dated October 6, 2004, were withdrawn November 10, 2004 and the Court’s opinion, Chief Justice Gray’s
dissenting opinion, and the judgment of this date are substituted therefore.
      With
these comments regarding the history of this appeal, I now proceed to the
substance of my dissenting opinion.
The Dissenting Opinion
      In
Appellants’ first issue, they contend that there was no evidence of proximate
cause and no evidence that Appellants failed to perform an appropriate
psychiatric screening examination.  See 42 U.S.C. § 1395dd(a) (2000).
      Appellees
contend that Appellants waived their issue by failing to object to the
testimony of one of Appellees’ expert witnesses.  The cases cited by Appellees, to the extent
that they are on point, concern the waiver of objections to the methodological
reliability of expert testimony, not the sufficiency of the evidence.  See Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); Crown
Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex.
App.—Houston [14th Dist.] 2001), rev’d, 136 S.W.3d 227 (Tex. 2004); Gen.
Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n.2 (Tex. App.—San Antonio
1998, pet. denied).[1]  By
making an objection to the charge, filing a motion to disregard jury questions
and for judgment notwithstanding the verdict, and filing a motion for new
trial, all on the grounds that there was no evidence of proximate cause,
Appellants preserved their no-evidence complaint.  See
Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex. 2004); T.O.
Stanley Boot Co. v. Bank of El
  Paso,
847 S.W.2d 218, 220 (Tex.
1992).
      Lance
Dowell was admitted to the Providence Health
Center emergency room for treatment of shallow
self-inflicted cuts to his wrists.  A
nurse employed by Appellants performed a psychological evaluation of
Lance.  Appellees contend that Appellants
failed to promulgate or enforce policies for psychological screenings, that the
nurse failed to perform an appropriate screening, and that these failures
caused Lance’s death.  The undisputed
evidence was that when the nurse evaluated Lance, Lance was lucid, calm,
remorseful, stable, and not actively suicidal. 
There is no evidence that, if Appellants had recommended admission to
the DePaul Center, a psychiatric hospital, Lance would have agreed or could have
been compelled to be admitted.  After
Lance was released from Providence to Appellees, and until his death, Appellees
saw nothing out of the ordinary about Lance except that he was “more
withdrawn.”  The day that he was released
from the hospital, Lance visited with his family, went to a rodeo, and visited with
friends.  The next day, he had lunch with
his family and helped a friend bale hay. 
About a day and a half after he left Providence, Lance hanged himself.  Appellees’ expert testified, at most, that
had Lance been admitted to DePaul the probability that he would commit suicide
upon his release would have been reduced.
      Under
these facts, there is no evidence that Appellants’ conduct was a substantial
cause of Lance’s death.  See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc.
v. Ramos, 143 S.W.3d 794,
798-800 (Tex. 2004); Marathon Corp. v.
Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); St.
  Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex. 2002); Dallas County Mental
Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998). 
Accordingly, we should sustain Appellants’ first issue.
      We
should, then, after sustaining Appellants’ first issue, reverse and render
judgment that Appellees take nothing from Appellants.  Therefore, we should not consider Appellants’
other issues.
      Because
the disposition of the first issue would be dispositive of the appeal, I will not
discuss my disagreements, and there are many, with the remainder of the
majority’s opinion.  I note only in
passing that an estate, by that name, is not a proper party to litigation.  Embrey
v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n.2 (Tex. 2000); Price
v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975).  I
also note that two notices of appeal from the same judgment should bear the
same docket number on appeal.  Tex. R. App. P. 12.2(c).  Docketing this cause and Cause No. 10-01-00420-CV,
styled Pettit v. Dowell, as two
separate appeals was improper.
TOM
GRAY
Chief Justice
Dissenting
opinion delivered and filed March 30, 2005
 




[1]       See
also Coastal Transp. Co v. Crown Cent. Petroleum Corp., 136 S.W.3d 227,
231-33 (Tex. 2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d
245, 252 (Tex. 2004).


