








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1427-11



EX PARTE MARIO AMARO CASTILLO, Appellant


v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS

DENTON  COUNTY



 Alcala, J., filed a dissenting opinion in which Johnson, J., joined.

DISSENTING OPINION


	I respectfully dissent.  I conclude that the court of appeals had jurisdiction over this
appeal filed by appellant, Mario Amaro Castillo.  It is undisputed that, had appellant sent his
notice of appeal and motion for extension of time through the United States Postal Service
(USPS), the court of appeals would have jurisdiction over his appeal. But he did not use
USPS and, instead, used Federal Express. Consequently, according to the majority opinion,
the court of appeals lacked jurisdiction over his appeal.  
	The only rational basis for disallowing an untimely filed notice of appeal sent by
Federal Express while permitting the same notice of appeal sent through USPS is that the
plain language of Texas Rules of Appellate Procedure 9.2 refers only to USPS. See Tex. R.
App. P. 9.2(b)(1)(A).  That rule states, in relevant part, "A document received within ten days
after the filing deadline is considered timely filed if it was sent to the proper clerk by United
States Postal Service first-class, express, registered, or certified mail[.]" Id. It is time to
update the rule to include modern-day, nationally recognized mail carriers.  But until then,
we must decide (1) whether an appellate court does not have jurisdiction over an appeal
delivered by a private courier because the plain language includes only USPS, or (2) whether
interpreting the rule to include delivery by Federal Express, a nationally recognized private
courier that has demonstrated reliability comparable to that of USPS, better effectuates the
intent of that rule.
	The Texas Supreme Court has consistently held that appellate courts should not
dismiss an appeal for a procedural defect whenever an arguable interpretation of the appellate
rules would preserve the appeal:
We have repeatedly held that a court of appeals has jurisdiction over any
appeal in which the appellant files an instrument in a bona fide attempt to
invoke the appellate court's jurisdiction. Our decisions reflect the policy
embodied in our appellate rules that disfavors disposing of appeals based upon
harmless procedural defects. Thus, we have instructed the courts of appeals to
construe the Rules of Appellate Procedure reasonably, yet liberally, so that the
right to appeal is not lost by imposing requirements not absolutely necessary
to effect the purpose of a rule.  
Verburgt v. Dorner, 959 S.W.2d 615, 616-617 (Tex. 1997); see also Stokes v. Aberdeen Ins.
Co., 917 S.W.2d 267, 268 (Tex. 1996) (rejecting lower court's reading of appellate
procedural filing requirements as "too restrictive"). This Court has "functionally embraced
an approach to perfecting appeals and notice of appeal closer to that of the Texas Supreme
Court" and "decline[s] to elevate form over substance." (1) Few v. State, 230 S.W.3d 184, 189
(Tex. Crim. App. 2007) (quoting Bayless v. State, 91 S.W.3d 801, 806 (Tex. Crim. App.
2002)). I would hold that appellant's mere failuredelivery through an undesignated, but
reliable, carrierdoes not constitute a jurisdictional defect but a procedural irregularity.
Compare Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (complete failure to
file motion for extension of time to file notice of appeal was jurisdictional defect).
	Federal Express is a well-established, nationally recognized courier widely regarded
as a leader in parcel-delivery reliability. See Fed. Express Corp. v. UPS, 765 F. Supp. 2d
1011, 1015 (W.D. Tenn. 2010) (discussing 2009 Morgan Stanley Research Parcel Returns
Survey ranking Federal Express first under "Service Reliability"). (2)  According to its website,
Federal Express "uses a global air-and-ground network to speed delivery of time-sensitive
shipments, usually in one to two business days with the delivery time guaranteed," a claim
substantiated by the company's track record. (3)  If the mailbox rule originated because "it is
presumed, from the known course of business in the post-office department, that [a
document] reached its destination at the regular time, and was received by the person to
whom it was addressed," Rosenthal v. Walker, 111 U.S. 185, 193 (1884), then that
presumption must logically extend today to include a private courier such as Federal Express,
which has provided over forty years of reliable, nationwide service. See Fed. Express Corp.,
765 F. Supp. 2d at 1015. (4) To conclude otherwise would frustrate the intent of the rule of
ensuring timely delivery of documents to be filed with the court.  As this Court has noted,
"[a]s societal conditions change, so do procedural requirements and rules."  Few, 230 S.W.3d
at 190. We should construe Rule 9.2 accordingly.
	In this case, Federal Express delivered appellant's documents to the proper designated
address within 24 hours of the time appellant tendered the documents to it.  Had appellant
used USPS, the documents would have been considered timely received if they have been
received nine days after that.  A criminal defendant's entire appeal should not be thrown out
merely because he used a mail carrier that is at least as reliable as USPS, particularly when
his mail was actually received on the first of the ten days to which he would have been
entitled had he used USPS. To decline jurisdiction on this basis would be to elevate form
over substance in contravention of this Court's precedent. See Few, 230 S.W.3d at 189;
Bayless, 91 S.W.3d at 806.  Because appellant's use of Federal Express instead of USPS is
a harmless procedural defect in light of that company's status as a reliable mail carrier, I
respectfully dissent.
								Alcala, J.
Filed:  June 20, 2012
Publish
1. 	Compare Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (in construing
statutes, "we necessarily focus our attention on the literal text of the statute in question" because "the
Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific
text that was adopted.").
2. 	See also Nicole M. Mayerhauser & Erich H. Strassner, U.S. Dept. of Commerce
Bureau of Economics, "Prototype Quarterly Statistics on U.S. Gross Domestic Product
by Industry" (2011), available at http://www.bea.gov/scb/pdf/2011/07%20July/0711_brief_indy_
accts.pdf (providing data on industry-level economic performance, listing Federal Express in
"Principal Sources of Data for Quarterly Industry and Commodity Output and Prices" under
"couriers and messengers").
3. 	See "FedEx Express" information page at http://about.van.fedex.com/fedex_express; William
B. Cassidy, FedEx Annual Revenue Rises to $39.3 Billion, The Journal of Commerce Online
(Jun. 22, 2011), http://www.joc.com/parcel-package/fedex-annual-revenue-rises-393-billion; Dean
Foust, Frederick W. Smith: No Overnight Success, Bloomberg Businessweek (Sept. 20, 2004),
available at http://www.businessweek.com/magazine/content/04_38/b3900031_mz072.htm
("Although FedEx has spawned numerous competitors, it is still the biggest operator, with a 44%
share of the air express market.").
4. 	In response to the prevalent use of Federal Express, Congress amended the federal mail-fraud
statute to include "private interstate commercial carriers, such as . . . Federal Express, in addition
to the U.S. Postal Service." United States. v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (citing 18
U.S.C. § 1341), cert denied, 534 U.S. 813 (2001).
