PD-0279-20 09/16/2020
1. “Whether the 10-day grace period for filing a notice of appeal was unavailable when the incarcerated defendant omitted the words ‘district clerk’ from the envelope he used to send his notice of appeal. [CR: 64, 74-76; APX-A/Op. Ct. App. 2-3].”
2. “Under what circumstances should an incarcerated defendant be allowed factual development to show the clerk physically received his notice of appeal within the 10-day grace period? [CR: 64, 74-76; Ltr. Br. App. 3; APX-A/Op. Ct. App. 4 n.1].”
Anderson timely mailed his notice of appeal on November 4, 2019 to “Dallas County Court # 265.” It was not filed by the clerk until almost a month later, however. As a result, the court of appeals dismissed the appeal for lack of jurisdiction. In doing so, it concluded that the ten-day grace period for receipt by the clerk was inapplicable because the envelope was addressed to the court, not the district clerk as required by Tex. R. App. P. 9.2(b)(1)(A).
Anderson argues the court of appeals’ grace period ruling is erroneous. He points out that the Court in Moore v. State, 840 S.W.2d 439 (Tex. Crim. App. 1992), held that when the face of the enclosed document shows it was intended for the clerk and the envelope had “minor imperfections” with respect to the address, the grace period applies. And in Taylor v. State, 424 S.W.3d 39 (Tex. Crim. App. 2014), the Court stated that Rule 9.2(b)(1)(A)’s “proper” clerk requirement was intended to ensure that appellants would file in the court of conviction, not with another party or entity.
Next, Anderson contends that his case should be abated and remanded for an evidentiary hearing to determine whether the envelope was received within the grace period by the courthouse’s receiving clerk (on behalf of the court clerk). He argues that, when the facts are ascertainable, this procedure is more efficient by obviating the need to resolve the matter by way of habeas corpus.
