                                                                             PD-0180-15
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
June 15, 2015                                             Transmitted 6/15/2015 12:00:00 AM
                                                             Accepted 6/15/2015 7:52:34 AM
                                                                             ABEL ACOSTA
                          PD-0180-15                                                 CLERK




                COURT OF CRIMINAL APPEALS
                        OF TEXAS



                PATRICIA ELIZABETH HARKCOM,
                         APPELLANT

                                   V.

                    THE STATE OF TEXAS,
                         APPELLEE

                     APPELLANT’S BRIEF
                            On Appeal From
                       The Second Court of Appeals
                         In No. 02-12-00576-CR
                   Affirming the Judgment in CR12165
                        In the 355th District Court
                           Hood County, Texas
                   Honorable Ralph Walton, Presiding

                                    MITCHELL LAW

                                    RICHARD MITCHELL   # 24047319
                                    ATTORNEY
                                    211 S Rusk St
                                    Weatherford, Texas 76086
                                    817 594 1088
                                    Fax 817 585 4778

                 ORAL ARGUMENT IS REQUESTED
              IDENTITY OF PARTIES AND COUNSEL



APPELLANT

Patricia Elizabeth Harkcom
Unknown

Trial Court

355th District Court                       Ralph Walton (Presiding)
Hood County Courthouse                     817 579 3233
1200 Pearl St Granbury Tx


Counsel:

Attorney for the Appellant (appeal):       Richard Mitchell
                                           Attorney At Law
                                           Texas Bar No. 24047319
                                           211 S Rusk St
                                           Weatherford, Texas 76086
                                           (817) 594-1088
                                           (817) 585-4778 fax


Attorney for the Appellant (trial):        Andrew Ottaway
                                           Texas Bar No. 015342850
                                           PO Box
                                           Granbury Tx 76048
                                           (817) 573-7823


Attorneys for Appellee:                    Megan Chalifoux
                                           Hood County Courthouse
                                           1200 Pearl Street
                                           Granbury, Texas 76048
                                           (817) 579-3245



                                      ii
                                   Table of Contents

Identities of Parties and Counsel .................................................... ii

Index of Authorities ........................................................................ iv

Statement Regarding Oral Argument ............................................. 1

Statement of the Case...................................................................... 1

Issue Presented ................................................................................ 3

Was the instrument the appellant filed with the trial court
a bona fide attempt to invoke the appellate court’s
jurisdiction as set forth in Tex. R. App. P. 25.2(c)(2) and in
Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)?............. 3

Statement of Facts ........................................................................... 4

Summary of the Argument .............................................................. 7

Argument ......................................................................................... 8

Conclusion and Prayer for Relief................................................... 16

Certificate of Service...................................................................... 16

Certificate of Compliance………………………………………………17




                                                iii
                                 Index of Authorities

Cases:

Court of Criminal Appeals

Bayless v State, 91 S.W.3d 801 (Tex. Crim. App. 2002) .................. 8

Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) .............. 9

Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007)................ 8,11

Gonzales v State, 421 S.W.3d 674 (Tex. Crim. App. 2014.)... ...... 11

Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) .................. 15

Supreme Court of Texas

Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) ................................ 9

Verburgt v. Dorner, 959 S.W. 2d 615 (Tex. 1997)............................ 9

Courts of Appeals

Clark v. State, 287 S.W.3d 355 (Tex. App.—Texarkana 2009, no
pet) ............................................................................................... 14

Hall v, State, 11-05-00222-CR (Tex. App.—Eastland 2006) (not
designated for publication) ............................................................ 12

Lair v. State, 321 S.W.3d 158 (Tex. App.— Houston [1 st Dist]
2010)(not designated for publication).............................................. 9

Massey v. State, 759 S.W.2d 18 (Tex. App.—Texarkana 1988) .... 12

Palma v, State 76 S.W.3d 638 (Tex. App.—Corpus Christi 2002) 12

Rollins v. State 282 S.W.3d 741 (Tex. App.—Beaumont 2009) ...... 9

                                                  iv
Roberts v. State, 270 S.W.3d 662 (Tex. App.—San Antonio 2008,
no pet.)............................................................................................ 13

Soto v. State, 03-08-00099-CR (Tex. App.—Austin 2009) ............. 11


Statutes:

Tex R. App P. 25.2(c)(2) ................................................................... 8




                                                  v
                  Statement Regarding Oral Argument

      Harkcom requests oral argument upon the important issue

presented in this petition. The denial of the right to appeal her

conviction on the merits has serious constitutional implications for

other appellants throughout the State of Texas.

                            Statement of the Case

      On 31 December 2011, a Texas trooper arrested Harkcom, a

passenger in a shared vehicle, for a felony offense.1. Harkcom was

convicted and sentenced by a jury on 2 October 2012 for possession of a

controlled substance—methamphetamine—under one gram.2 The trial

court signed and filed its judgment of conviction on 31 October 2012

while presumably sending the Appellant a copy while she was in the

county jail.3

      After her conviction, Harkcom remained in jail without access to

an attorney or legal materials. Described by her trial attorney as

“having some deficits,” Harkcom communicated her desire to appeal




1 R.R. 3-20
2 C.R.1:12
3 CR 1:21, Appellant’s trial counsel did not apply for an appeal bond.

                                          1
through the only paperwork that was given to her from the Hood

County court system.4

      Appellate counsel was appointed the next day by written order

and filed a motion for new trial and a notice of appeal on 8 November

2012.5 The trial court heard evidence on Harkcom’s ineffective trial

counsel claim but denied relief.

      The court of appeals raised a concern about the timeliness of the

notice of appeal in February 2013 when it asked for an explanation for

the late filing.6 The appeal continued with briefing by both sides on the

ineffectiveness of Harkcom’s trial attorney.7

      On 2 October 2014 the court of appeals found in a split decision

that Harkcom’s appeal should be dismissed for want of jurisdiction

because of the untimely notice of appeal by her attorney.




4  R.R. 4: 39, CR 1: 26
5 CR 1-28
6 Majority Opinion 5
7 ID

                                    2
                        Issue Presented

Was the instrument the appellant filed with the trial court a
bona fide attempt to invoke the appellate court’s jurisdiction as
set forth in Tex. R. App. P. 25.2(c)(2) and in Few v. State, 230
S.W.3d 184 (Tex. Crim. App. 2007)?




                                3
                            Statement of the Facts

      On 31 December 2011, a Texas trooper detained Julie Underhill

for an equipment violation on her company’s car.8. The trooper escorted

her to his patrol car to be interviewed. 9 He noticed her past arrests

and an old drug conviction, so he asked her for consent to search the

car.10 Ms. Underhill declined the trooper’s invitation to search her

vehicle. The trooper called for a K-9 to perform an open air search.11

      While waiting, Ms. Underhill told the trooper that other employees

of the company she worked for used narcotics and had access to the

same vehicle.12 The trooper attempted to convince Underhill that if

there was something that the other employees used or possessed then

she shouldn’t have been riding around with it and she wouldn’t be in

trouble13 Ms. Underhill maintained that she didn’t know what was in

the vehicle and there were a number of other employees who drove it

on a daily basis.14




8 R.R. 3-20
9 R.R. 3-22.
10 R.R. 3-28.
11 R.R. 3-29.
12 R.R. 6, State’s Exhibit 2 11:00-15:30
13 Id.
14 Id.

                                           4
      At trial the trooper testified that Underhill had aged dramatically

which led him to believe that she was a user of illicit drugs.15 Later,

another officer came on the scene and saw drug paraphernalia behind

the back seat of the vehicle which led to a full search of the vehicle.16 A

small quantity of what was purported to be methamphetamine was also

found behind the back seat of the vehicle.17

      The appellant and her lap dog were passengers in the car while

Ms. Underhill was being investigated.18 Upon finding the drugs both

Underhill and Harkcom were arrested.19 Ms. Underhill was never

prosecuted nor did she testify at trial.20

      Richard Trotter testified at the Motion for New Trial. Mr. Trotter

testified that he owned the vehicle that Ms. Underhill drove the day she

and Harkcom were arrested.21 He also testified that there were at least

nineteen of his employees who drove the vehicle on a daily basis.22




15 R.R. 3-56-57, R.R. 6, State’s Exhibit 2 34:00-35:00
16 R.R. 3-44
17 R.R. 3-44, 47
18 R.R. 3-22

19 R.R. 3-31

20 R.R. 4-20

21 R.R. 4-9
22 Id.

                                           5
Finally, he testified that Harkcom did not drive the vehicle and was not

employed by him.23




23   Id.
                                   6
                       Summary of the Argument

     Is the statement “I want a lawyer to help me with my appeal” a

bona fide attempt to invoke an appellate court’s jurisdiction? Does this

statement put a trial court, a clerk, and the prosecution on notice that a

defendant wants to appeal an appealable order or judgment? Yes, a

liberal or conservative reading of this statement puts all parties on

notice the defendant wants to appeal her case.

     Patricia Harkcom essentially did what is outlined above. The

difference though is that she had to make this request within the rules

and regulations of the Hood County system for indigent appointments

without the benefit of her trial lawyer who abandoned her at a crucial

post judgment time. She requested appellate counsel the only way she

knew how. Courts have hewed closely to the principle that appellate

courts should not dismiss an appeal for a procedural defect whenever

any arguable interpretation of the rules of appellate procedure would

preserve the appeal.




                                    7
                       Issues Presented for Review

Was the instrument the appellant filed with the trial court a
bona fide attempt to invoke the appellate court’s jurisdiction as
set forth in Tex. R. App. P. 25.2(c)(2) and in Few v. State, 230
S.W.3d 184 (Tex. Crim. App. 2007)?

                                   Argument

      An appeal is perfected if the notice shows the party’s desire to

appeal from the judgment.24          This idea restated beautifully by this

Court suggest “…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.”25

      In this case an incarcerated, indigent, inexperienced pro se citizen

made a bona fide attempt to invoke the Second Court of Appeals’

jurisdiction but was turned away, because, for some it’s easier to elevate

form over substance.

      This Court’s opinions from Bayless to Few and beyond have

continuously held that a person’s right to appeal should not depend

upon that person tracking through a trail of technicalities.26 In Few the

Court quotes Professor Dix, who suggests that the Court of Criminal


24Tex. R. App Pro 25.2(c)(2)
25Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007)
26 Bayless v State, 91 S.W.3d 801 (Tex. Crim. App. 2002)


                                        8
Appeals has “…functionally embraced an approach to perfecting

appeals and notice of appeal closer to that of the Texas Supreme

Court.”27

      This Court has not taken the next logical step as laid out in Hone,

where the Texas Supreme Court suggested that a court of appeals could

consider a notice of appeal filed two days late, but within the fifteen-day

period to extend the deadline under Rule 26.3 as an “implied motion for

extension of time to file a notice of appeal”.28 This Court should take

the final step at this time, as called for in Justice Gaultney’s dissent in

Rollins v. State, encouraged by Justice Sharps’ concurrence in Lair v

State and somewhat contemplated, although not squarely on point, by

Judges Alcala and Johnson their dissent in Castillo v. State.        29



      If the Court is so inclined then the attorney filed notice of appeal30

would suffice as an implied motion for extension of time. This case

would be an excellent beginning point in merging the civil and criminal

practices in the administration of justice. This Court should not be

27  Few at 189
28 Hone v. Hanafin, 104 S.W.3d 884, 885-86 (Tex. 2003) See Vernurgt v. Dorner, 959
S.W. 2d 615 (Tex. 1997)
29 Rollins v. State 282 S.W.3d 741, 743 (Tex. App.—Beaumont 2009), Lair v. State,

321 S.W.3d 158, 160 (Tex. App.— Houston [1 st Dist] 2010)(not designated for
publication) Castillo v. State, 369 S.W.3d 196, 203-205 (Tex. Crim. App. 2012)
30 C.R.34


                                        9
swayed by the predictable complaints that this change would

undermine the finality of judgments, that the implied extension would

indefinitely extend the time for the filing of appeals or any number of

disasters that could be dreamt up. Justice for the criminal defendant is

important and this judicially implied extension would not create the

imagined problems that the dissenting judges in Vernurgt.31 On the

contrary, because in Hone there was an opportunity to dissent as to the

continued use of the implied extension and no one did. However, the

Court does not need to take that small step because the appellant’s

filing is sufficient to invoke the court of appeals’ jurisdiction.

         A timely filed request for counsel to appeal a case can be

construed as a notice of appeal. The Second Court cites cases that were

decided prior to Few, which suggests that a request for an attorney or

an order for an appellate attorney is not a notice of appeal. Appellant

believes if these cases were decided in light of the Few opinion they

would be different.

         Appellant understands that Few is not squarely on point. In that

case the defendant filed a document titled notice of appeal which



31   Vernurgt at 617
                                      10
contained erroneous cause numbers.                  However, this Court re-

emphasized that the lower appellate courts should “not dismiss an

appeal for a procedural defect whenever any arguable interpretation of

the Rules of Appellate Procedure would preserve the appeal.”32 This

Court continued “…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.”33

        Finally and most importantly “Delayed or defective notices of

appeal are unlikely to contribute significantly to the difficulty of

preparing the appellate record or otherwise impede the appellate

process.”34

        Opinions from courts of appeals have shown how courts have

interpreted Few. In an unpublished case from the Third District held

that a timely filed notice that had the wrong name and the wrong

signature line but the correct cause number perfected the defendant’s

appeal.35


32   Few at 189
33   Id
34   Id at 190 (emphasis added)
35   Soto v. State, 03-08-00099-CR (Tex. App.—Austin 2009)
                                         11
      In Gonzales, this Court reversed the Waco Court of Appeals for

dismissing the appeal of a defendant who omitted three out of the four

cause numbers that he filed a notice on.36 Thus in its opinion this Court

recognized the Waco Court would have been upheld in the past. In light

of new rules and often cited case law a defendant’s right to appeal

“should not depend upon tracking through a trail of technicalities.”37

      There have been holdings where appellate courts have construed

differing documents as notices of appeal. In Hall, the Eleventh Court of

Appeals held that a request for appellate counsel demonstrated the

defendant’s desire to appeal his conviction.38          Likewise, in Palma a

defendant’s letter inquiring about an “appeal lawyer” was deemed

sufficient.39   A written request for a copy of the record and for

appointment of appellate counsel is sufficient to serve as notice.40 In

this case the only reason Ms. Harkcom sent the documents to the trial

court was to appeal her case.




36 Gonzales v State, 421 S.W.3d 674 (Tex. Crim. App. 2014)
37 Id at 675
38 Hall v, State, 11-05-00222-CR (Tex. App.—Eastland 2006) (not designated for

publication)
39 Palma v, State 76 S.W.3d 638, 641 (Tex. App.—Corpus Christi 2002)

40 Massey v. State, 759 S.W.2d 18, 19 (Tex. App.—Texarkana 1988)


                                       12
        As correctly pointed out by Justice Walker in her dissent a notice

of appeal must express a desire to appeal “from the judgment.” In this

case that judgment was signed by the trial court and delivered to

Harkcom twenty-nine days after sentence was pronounced.               The

majority’s rigid interpretation of the rules creates a situation that is

Kafka-esque in its application, involving a time table whereby a

defendant must express the desire to appeal from a judgment that does

not yet exist.

        After her conviction and sentence, Ms. Harkcom sat in the Hood

county jail for 29 days before she was presented with the judgment of

conviction and associated paperwork.41 One can safely presume she sat

there without the guidance of an attorney at this critical stage.42

During that time she sent jail provided paperwork to the trial court

requesting an attorney to appeal her case.43 The trial court knew she

wanted to appeal her case and wrote APPEAL in big block letters, then

filed it with the Hood County District Clerk.44 It appointed an attorney




41   C.R. 19
42   Majority Op. 3
43   C.R. 26
44   Id
                                     13
that same day the Appellant made a bona fide attempt to invoke the

appellate court’s jurisdiction when she filed her application.

      This Court should refrain from a bright line holding that an

affidavit and request for appellate counsel is not a bona fide attempt to

invoke the jurisdiction under these facts as held by the Second Court of

Appeals and other cases which they cited.45 Firstly, these cases were

decided during a time where technicalities doomed a defendant’s right

to appeal. Secondly, the cases are distinguishable.

      The Second Court cited Roberts v. State, where the facts are

similar to the present case.46 In Roberts the San Antonio Court stated

that the title of the document filed was “Statement of Inability to Afford

Counsel” which in its words, “The word appeal is never mentioned in

the document.”47

      In this case Harkcom filed two documents requesting appellate

counsel with the second document having the same exact cause number

that described the offense with which she had a right to appeal.48 In

addition the order appointing counsel was annotated with the words

45 Clark v. State, 287 S.W.3d 355 356(Tex. App.—Texarkana 2009, no pet.), Roberts
v. State, 270 S.W.3d 662, 665 (Tex. App.—San Antonio 2008, no pet.).
46 Roberts at 665

47 Id

48 C.R 26-27


                                       14
“Appeal” and “On Appeal” by the trial court.49 The trial court clearly

knew why Harkcom was asking for an attorney on the same cause

number she was convicted under. The document she filed showed her

attempt to appeal her case.

         In Jones this Court held that the language of the motion to

withdraw and the affidavit makes clear the appellant’s desire to

appeal.50 In this case Harkcom’s desire is also clear. In addition, the

trial court understood what her request was and filed it. The trial court

did not need to liberally construe her request because it knew exactly

what she was asking for. By asking for an attorney to appeal her case

she sent up a safety flare for all of world to see: that she wanted to

appeal her case.

         This Court understands how important the right to appeal is in

any case where defendants can spend decades in prison, and may do so

whether they are factually innocent, had their constitutional rights

infringed or just had an ineffective attorney. This Court should hold

that the right to appeal is so important to the orderly administration of

justice that a newly convicted defendant like Harkcom—alone,


49   C.R. 27
50   Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003)
                                           15
uneducated, and without counsel—can invoke her right when her desire

is clear but the documents are not.



                          Conclusion and Prayer

     The Court should, REVERSE the holding of the Second Court of

Appeals and REMAND for determination of the case on the merits.

                            Respectfully submitted,

                            MITCHELL LAW
                            211 S Rusk St
                            Weatherford, Texas 76086
                            Phone: (817) 594-1088
                            Fax (817) 585 4778
                            Richard@richardmitchelllaw.com


                            _/s/Richard Mitchell______________
                            Richard Mitchell
                            TX Bar No. 24047319
                            ATTORNEY FOR APPELLANT


                        Certificate of Service


      On the 15 day of June, 2015, a copy of the foregoing document will
be served upon opposing (Local and State )counsel.


                                 __/s/Richard Mitchell____________
                                 Richard Mitchell

                        Certificate of Compliance
                                      16
          I hereby certify that this document contains 2815 words in
14pt Century Schoolbook font.

                                ___/S/ Richard Mitchell




                                  17
