             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-0180-13



                             HENRY EARL TAYLOR, Appellant

                                                  v.

                                    THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIRST COURT OF APPEALS
                          HARRIS COUNTY

               K ELLER, P.J., filed a dissenting opinion in which K EASLER, J., joined.

       In a misguided effort to help appellant get his case before the court of appeals, the Court

misses the point of the court of appeals opinion, neglects the consequences of appellant’s own

argument, and cherry-picks which Rules of Appellate Procedure it will follow. I respectfully dissent.

              MISUNDERSTANDING THE COURT OF APPEALS OPINION

       Let’s start with why the court of appeals held that it lacked jurisdiction over appellant’s

attempted appeal. The Court misframes the issue early on by posing the question as whether notice

of appeal is timely filed “when it is mailed to the court of appeals” on or before the filing deadline.

That is not only not the issue, it assumes the existence of the very issue that is actually before us,
                                                                            TAYLOR DISSENT - 2

namely, whether notice was “mailed to the court of appeals.”

        The court of appeals said that the mailbox rule was inapplicable because the court was

without information about whether the notice was properly addressed to the correct court. The court

of appeals recognized that this is the very issue that was before it, saying that appellant had failed

to allege anything at all about whether he had sent the pleading to a clerk. Because the mailbox rule

requires such an allegation, the court of appeals said that the mailbox rule did not apply.        This

Court, however, says that “in the absence of direct evidence, as here, an appellate court may

reasonably infer” that appellant addressed his envelope to the clerk of the court of appeals. But this

is entirely backwards. Jurisdiction is not “inferred” in the absence of contrary evidence. If the

record fails to establish jurisdiction, then it does not exist.1

        The court of appeals followed Rule 9.2(b), which is presumably what this Court intended

when we adopted the rule. What the Court seems to be doing today is deciding after the fact that it

doesn’t like the rule as it is written. But we wrote it, and the court of appeals followed it. Moreover,

the court of appeals bent over backwards for appellant, giving him and his attorney numerous

opportunities to plead something – anything – that would confer jurisdiction on that court. Unlike

this Court, however, when appellant continually failed to do so, the court of appeals ultimately held

that appellant’s pleading failed to confer jurisdiction.

        The Court presumes that appellant sent his notice of appeal to the court of appeals. This



        1
         See Johnson v. State, 84 S.W.3d 658, 667 & n. 23 (Tex. Crim. App. 2002) (explaining that
“the record had to reflect that the defendant met the jurisdictional prerequisites before an appellate
court could address the merits of his claims”). See also DaimlerChrysler Corp. v. Charlotte, 547
U.S. 332 n.3 (2006) (“we presume that federal courts lack jurisdiction unless the contrary appears
affirmatively from the record”); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546-47
(1986).
                                                                            TAYLOR DISSENT - 3

presumption, however, assumes the existence of a fact that is at issue, i.e., it begs the question. The

Court also presumes that the envelope used by appellant “was lost at some point,” and it cites to

cases that say a defendant should not be prejudiced by “the clerk’s errors.” This improperly suggests

that the inadequacy in the record is attributable to the clerk, but nothing in the record supports such

a conclusion. And I do not agree with the Court’s suggestion that appellant had limited ability to

demonstrate that he timely filed his notice of appeal. All he had to do was say where he sent it, but

he did not do so.                 THE STATE’S ARGUMENT

       The State argues that the prisoner mailbox rule requires evidence that the notice of appeal

was addressed to the proper clerk, and it says the issue in this case is whether the record supports

such a finding. Citing to a Texas Supreme Court case, the State notes that the burden is on an

appellant to provide some proof that he has complied with the mailbox rule.

       The State argues that appellant relies upon an inference that, because his notice of appeal

arrived at the court of appeals, that must be where prison authorities were directed to send it. This

inference requires appellate courts to decide that his failure to say where the envelope was directed

was inadvertent, rather than “a calculated choice when making a statement under penalty of perjury.”

It also requires speculation that the envelope was lost, to foreclose the possibility that appellant

mailed his notice of appeal to a third party. The State claims that appellant’s interpretation would

render meaningless the requirements under the Rules that appellant show that he directed his filing

to the proper clerk.

       The Court does not address the State’s arguments.

                                  APPELLANT’S ARGUMENT

       Appellant argues that a properly addressed envelope is one whose contents arrive at the
                                                                            TAYLOR DISSENT - 4

proper destination within the time allowed by the rules. Because his envelope did arrive within the

time designated by the mailbox rule, it was, he claims, ipso facto, properly addressed. He faults the

court of appeals for requiring that an envelope be “perfectly” addressed.

       Appellant relies on Moore.2 He says that, in order for the mailbox rule to apply, an envelope

must be addressed to a court clerk who acts as agent for the district clerk. He acknowledges that

addressing an envelope to a civilian intermediary, who may then file the document within the ten

days, would not comply with the mailbox rule. He says that an envelope addressed to the El Paso

County Clerk, and then forwarded to the Harris County District Clerk, would also not be timely

under the mailbox rule. He then argues that the fact that his envelope arrived within ten days of the

filing deadline proves that it was properly addressed.

       I agree with appellant in at least this regard: the mailbox rule requires that documents be

addressed to a clerk. This, of course, appellant failed to allege, even given numerous opportunities,

and that is why the court of appeals held that it lacked jurisdiction. The Court’s holding renders

superfluous the requirement of the rule that an envelope be addressed to “the proper clerk.”3 Even

in light of Moore, when we are considering a pleading upon which jurisdiction depends, there must

be some indication in the record that the document was addressed to a clerk.

                     SOME RULES ARE MORE EQUAL THAN OTHERS

       The Court makes a point of saying that the plain language of Rule 25.2(c)(1) requires an

appellate court clerk to forward a notice of appeal to the trial-court clerk. Well, yes, but that rule




       2
           Moore v. State, 840 S.W.2d 439, 441 (Tex. Crim. App. 1992).
       3
           TEX R. APP . P. 9.2(b)(1) and (2).
                                                                             TAYLOR DISSENT - 5

does not say – as the rule for civil cases does4 – that a notice of appeal that is directed to the court

of appeals is deemed to have been filed in the trial court on the date the court of appeals receives it.

The plain language of Rule 9.2(b) requires that a document be addressed to the proper clerk in order

for the mailbox rule to apply. The Court does not apply the plain language of that rule.

                                             ANALYSIS

        I agree that Moore stands for the proposition that minor, non-fatal discrepancies in envelope

addressing should not deprive a person of the right to appeal. The envelope in Moore was addressed

to a clerk on the right floor of the correct building. Here, though, the record does not show that

appellant mailed his letter to a clerk at all. Appellant has argued that addressing a document to a

civilian, or even to the clerk of the wrong county, is inadequate to confer jurisdiction. Under his own

reasoning, the record is inadequate to establish compliance with Rule 9.2(b) and, therefore, it is

inadequate to show jurisdiction.

        The court of appeals offered appellant the opportunity to show jurisdiction not once, but

twice. On both occasions he was represented by appellate counsel, and on both occasions he failed

to show compliance with Rule 9.2(b). Appellant did not have to comply perfectly with the rule, but

he had to comply.

                                           CONCLUSION

        I agree with the court of appeals (and with appellant) that mere timely receipt of notice in an

appellate court before the deadline does not establish jurisdiction under the Rules of Appellate


        4
          Tex. R. App. P. 25.1(a) (“If a notice of appeal is mistakenly filed with the appellate
court, the notice is deemed to have been filed the same day with the trial court clerk, and the
appellate clerk must immediately send the trial court clerk a copy of the notice.”) Further, the
Rules of Appellate Procedure have recently been revised, but this element of Rule 25 was not
amended.
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Procedure.5 I respectfully dissent.6

Filed: February 5, 2014
Publish




       5
           Douglas v. State, 987 S.W.2d 605 (Tex. App.–Houston [1st Dist] 1999, no pet.)
       6
         As the State notes, appellant is not foreclosed from seeking an out-of-time appeal
through a writ of habeas corpus. See Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).
