


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-05-00087-CR
 
Richard R. Reyes, Sr.,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 

From the 54th District Court
McLennan County, Texas
Trial Court # 1998-807-C
 

DISSENTING Opinion

 




          We
issued an opinion on March 23, 2005, in this appeal.  I concurred without a separate opinion in the
judgment which dismissed the appeal.  It
now has become necessary for me to explain why I agreed with the original
disposition of the appeal and why I now must dissent.
          It
was immediately obvious to me upon reading the first sentence of the Memorandum
Opinion that the case had been improperly designated as a criminal appeal.  The first sentence of the Opinion reads
“Richard R. Reyes, Sr. appeals from the trial court’s December 1,
 2004, denial of his
request for medical records.”  The first
paragraph proceeds to explain the procedural history of the case as follows:  “We sent a letter to Reyes on February 8,
 2005 stating that the
appeal is subject to dismissal for want of jurisdiction.  No response has been received.”  Based upon this history, I could agree to
dismiss this appeal for at least four reasons: 

1.     
The only
document in our files which could conceivably be a notice of appeal was filed
over 60 days after the order about which Reyes’s complaint is made.  Thus, it would be untimely even with an
implied motion for extension of time under Verburgt.  Verburgt
v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). 
 
2.     
Based upon
the information in the file, the request for medical records was part and
parcel to Reyes’s effort to bring a civil action against certain state
officials and the State of Texas, and possibly county officials as well, the denial of such records
thus being an interlocutory discovery order over which we have no jurisdiction.
 See
Jack B. Anglin Co. v.
Tipps, 842 S.W.2d 266, 272 (Tex. 1992).
 
3.     
As, what I
believe to be, a civil appeal, Reyes failed to pay the filing fee, and
therefore a dismissal was proper.  See Gordon v. Gordon, 2005 Tex. App. LEXIS 2576 (Tex. App.—Waco March 30, 2005, no pet. h.).
 
4.     
Reyes’s
failure to respond to the correspondence provided an independent basis for
dismissal pursuant to the Rules of Appellate Procedure.  See
Tex. R. App. P. 42.3(c).
 
Based upon any of
these shortcomings, a judgment of dismissal was appropriate; and specifically,
a dismissal for want of jurisdiction was proper under items 1 and 2.  The majority, rather than treat this appeal
as a civil case, treated it as a criminal case stating that we had jurisdiction
of an appeal in a criminal case “only when expressly provided by law;” and
finding no such expression, the majority dismissed the appeal for want of
jurisdiction.
The problem that now
presents itself is that the majority wants to treat a document filed in
response to our judgment as a petition for discretionary review and forward it
to the Court of Criminal Appeals. 
Accordingly, it has become necessary for me to explain why I believe
this to be an erroneous course of proceeding.
In the document Reyes
filed January 31, 2005, which was treated as a notice of appeal, Reyes makes
the following statement:  “I am asking
for the right to file claim and tort claim and other facts (pro se) Texas Tort
Claim Act & ask the courts for mercy & question nunc pro tunc etc. to
decisions of mercy, and relief, the same as the courts recognize stated facts
of abuse in the courts.”  While his self-crafted
pleadings are, to say the least, difficult to decipher, they clearly
contemplate a civil action against the State and various state employees and
possibly the county as well.  But of
course this is the document that came to us as a notice of appeal, not the
clerk’s record from the underlying proceeding. 
The reason I cannot review the clerk’s record from the underlying
proceeding is because this case was dismissed before the time to file that
record came to pass.  
This brings me to the
document filed by Reyes after this Court dismissed his appeal.  Reyes, on April 14, 2005, tendered a document for filing entitled
“Petition for Coram Nobis” which is dated March 31, 2005.  This,
too, is a self-crafted document which is difficult to decipher, but I believe
what Reyes is trying to tell us is that we have made a mistake of fact in
characterizing his appeal as a criminal case. 
A writ of coram nobis is defined as “2. 
A writ of error directed to a court for review of its own judgment and
predicated on alleged errors of fact.”  Black’s Law Dictionary 338 (7th ed. West
1999).  Thus, this document would
properly be characterized as a motion for rehearing asking this Court to review
its own judgment, not a petition for discretionary review in which the review
would be conducted by a higher court.
Further, I believe
that what Reyes is trying to do is call our attention to an error of fact.  The fact we are in error about is treating
this as a criminal case.  It is not.  It is a civil case.  It is the appeal of an administrative
grievance process from the denial of copies of medical records.  At least that is what it appears to be based
upon the attachments to the petition for coram nobis.  
I would grant the
writ, effectively a motion for rehearing, and withdraw our opinion and judgment
and order the cause number changed to reflect that it is a civil case, not a
criminal case.  I would then reevaluate
the procedural posture of the appeal to determine the appropriate notices that
need to be sent to get this appeal back on track as a civil case.  Specifically, if Reyes filed anything with
the trial court that could be characterized as a notice of appeal prior to the
document filed with this Court, Reyes’s notice of appeal may have been
timely.  Further, if any document which
could be characterized as a motion for new trial was timely filed by Reyes in
the trial court, he would have the extended time frame of 90 days within which
to file his notice of appeal; therefore, his notice of appeal would have been
timely.  See Tex. R. App. P.
26.1(a).
In the final
analysis, until we have properly characterized this appeal as a civil appeal,
and go through the appropriate procedures for disposition, it will only further
complicate the procedural posture of this case. 
I pause here to note that if this were truly a criminal case being
appealed, our first inquiry should be: 
Why is this person not represented by an attorney?
My failure to note my
disagreement with the characterization of this case was the result of my effort
to avoid a disagreement which, at the time, I thought would not advance the ultimate
disposition of this appeal.  Based upon
the reasons as stated above, I felt that the appeal was properly being
dismissed.  It now appears that my effort
to avoid conflict with the other members of the Court on what I initially
perceived as an immaterial issue, has only resulted in further complications of
this particular appeal and reinforces my general practice of noting my dissent
based upon what other persons may believe to be immaterial or inconsequential
issues.  For the delay and additional
issues created in this proceeding, I most humbly apologize, but I can no longer
join the Court’s memorandum opinion and judgment dated March 23,
 2005, which dismissed
this appeal as a criminal case for want of jurisdiction.
          I
respectfully dissent.[1]
 
 
                                                                   TOM
GRAY
                                                                   Chief
Justice
 
Dissenting opinion delivered and filed May 11,
 2005
Publish




[1] In addition to the Petition for Coram Nobis,
Reyes filed a motion for leave to file a Petition for Writ of Mandamus
accompanied by a Petition for Writ of Mandamus. 
The documents were mailed to the Clerk of the Tenth Court of
Appeals.  The documents are styled as if
they would be filed in the Court of Criminal Appeals.  And the text of the documents is addressed to
the “Judges of McLennan County.”  From these documents, it is clear that Reyes is
working with an outdated rule book, but that is about the only thing clear in
these pleadings.  It appears the mandamus
is sought against various state employees other than judges.  The only court, if any, that would have
jurisdiction of a mandamus of these persons would be a district judge in the
county where the ministerial act, if any, should have been performed.  I cannot agree that this document should also
be forwarded to the Court of Criminal Appeals as a part of a petition for
discretionary review.  We should forward
it to the district courts of Houston County where the Eastham Unit, in which Reyes is incarcerated, is
located.


