Murrell Foster and Carolyn Foster, a Married Couple v. James Williams and Larise Williams, a Married Couple And James Aaron Davis, an Individual

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00161-CV ______________________________ MURRELL FOSTER AND CAROLYN FOSTER, A MARRIED COUPLE, Appellants V. JAMES WILLIAMS AND LARISE WILLIAMS, A MARRIED COUPLE; AND JAMES AARON DAVIS, AN INDIVIDUAL, Appellees On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 01C1038-202 Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius O P I N I O N Murrell and Carolyn Foster appeal from the dismissal of their lawsuit. The trial court construed the Fosters' cause of action as an action to quiet title and dismissed the action because the statute of limitations for that type of claim had expired. The initial question we must answer is whether we have jurisdiction to determine the appeal. The judgment was signed on September 12, 2001, and the Fosters filed a request for findings of fact and conclusions of law on September 17, 2001. They filed a document on December 11, 2001, that was treated as a notice of appeal. The question is whether the Fosters' notice of appeal is adequate, and if so, whether it was timely. The Fosters filed a docketing statement in this Court rather than a notice of appeal in the trial court. They contend that the docketing statement filed in this Court suffices for a notice of appeal. The docketing statement is required by Tex. R. App. P. 32.1 and is designed to provide this Court with specific information about an appeal. Appearing below the title of the docketing statement form is the following language: "This docketing statement must be filed by appellants with the Clerk of the Sixth Court of Appeals . . . upon perfecting appeal." The form also contains a space for the appellant to show when the notice of appeal was either filed or mailed to the trial court clerk. We asked the Fosters to address the apparent defect in the perfection of their appeal. They contend that the docketing statement is sufficient to serve as a notice of appeal because it contains the essential information required by Tex. R. App. P. 25.1(d). They also suggest that because they are appealing pro se, they should not be required to strictly follow the procedural rules that persons represented by attorneys are required to follow. (1) That is not the standard for pro se litigants. Although we may read the language of pro se documents broadly, we do not otherwise apply lesser standards for the benefit of pro se litigants. Pro se litigants are held to the same standards as licensed attorneys, and they must therefore comply with all applicable rules of procedure. Clemens v. Allen, 47 S.W.3d 26, 28 (Tex. App.-Amarillo 2000, no pet.); Chandler v. Chandler, 991 S.W.2d 367, 379 (Tex. App.-El Paso 1999, pet. denied); In re Estate of Dilasky, 972 S.W.2d 763 (Tex. App.-Corpus Christi 1998, no pet.); Clark v. Yarbrough, 900 S.W.2d 406, 409 (Tex. App.-Texarkana 1995, writ denied). No allowance is made because a litigant is not an attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.-Texarkana 1997, no writ). If pro se litigants were held to a lesser standard, they would be given an unfair advantage over litigants represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Lin v. Houston Cmty. Coll. Sys., 948 S.W.2d 328, 336 (Tex. App.-Amarillo 1997, writ denied). The question is whether we may treat the docketing certificate as a notice of appeal. The two documents are entirely different. A notice of appeal is filed with the trial court clerk and should identify the court and style of the case, state the date of judgment, state that the party wishes to appeal, state the court to which the appeal is taken, and state the names of the parties. A copy is to be filed with the appellate court. Tex. R. App. P. 25.1. The docketing statement is filed with the appellate court, and it is required to contain more detailed information than a notice of appeal. A docketing statement does not contain language stating that the party wishes to appeal. Rather, it assumes that the party wishes to appeal, and it presupposes that a valid notice of appeal has been filed. Its purpose is purely administrative, to provide the information that allows the appellate court to both properly docket the appeal and efficiently move it forward through the appellate system. Tex. R. App. P. 32.1. The ultimate question, then, is whether a docketing statement may serve as a notice of appeal and be sufficient to invoke the jurisdiction of the appellate court. This specific question has not been previously addressed by the Texas courts. The Fosters point out that the docketing statement does contain some of the essential information required for a notice of appeal. The docketing statement also makes it clear that the Fosters want to pursue an appeal. The document, however, is not a notice of appeal, as can readily be seen by the fact that it contains a blank, to be filled in by the party, designed to provide the appellate court with information about the date on which the notice of appeal was filed. In this case, that blank does not contain the required information. The Texas Supreme Court has held that the Rules of Appellate Procedure should be interpreted liberally to allow appellate courts to reach the merits of an appeal whenever possible. Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987); Consol. Furniture Co. v. Kelly, 366 S.W.2d 922, 923 (Tex. 1963). To further that principle, the court has given appellants broad latitude to amend their perfecting documents. See, e.g., Maxfield v. Terry, 888 S.W.2d 809, 810-11 (Tex. 1994) (cost bond may be amended by filing an additional bond if the first cost bond was mistakenly intended to invoke the appellate court's jurisdiction in two different causes); City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (notice of appeal could be amended to show correct cause number); Woods Exploration & Producing Co. v. Arkla Equip. Co., 528 S.W.2d 568, 570 (Tex. 1975) (clerk's certificate of cash deposit could be amended to show additional parties). In Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994), and Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., Inc., 813 S.W.2d 499, 500 (Tex. 1991), the Texas Supreme Court held that an appellant could amend an inadequate perfecting instrument by filing a different instrument. In Grand Prairie, the Court held that an appellant who timely filed a notice of appeal, but who should have filed an appeal bond, was entitled to amend or refile by filing a cost bond or making a cash deposit. The common factor linking these cases is that some document was timely filed that could later be amended. In Grand Prairie Indep. Sch. Dist. v. S. Parts Imps., Inc., 813 S.W.2d at 500, the Court said: If the appellant timely files a document in a bona fide attempt to invoke the appellate court's jurisdiction, the court of appeals, on appellant's motion, must allow the appellant an opportunity to amend or refile the instrument required by law or our rules to perfect the appeal. In Linwood v. NCNB Tex., 885 S.W.2d 102, the Court followed Grand Prairie in holding that an appellant who mistakenly filed a notice of appeal and then filed a cost bond fifty-three days after the judgment was signed, was entitled to appeal. (2) The Court reiterated, "The court of appeals . . . has jurisdiction over the appeal if a party files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction." Id. at 103. The decisions in both Grand Prairie and Linwood were based in part on former Tex. R. App. P. 83 (Vernon 1997), which provided that an appeal shall not be dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. Following the Texas Supreme Court's guidelines, we construe the Fosters' docketing statement as a bona fide attempt to perfect an appeal. Tex. R. App. P. 26 provides that a notice of appeal must be filed within thirty days of the signing of the judgment unless some document is filed that extends that time period to ninety days. In this case, within the requisite time period, the Fosters filed a request for findings of fact and conclusions of law. The Texas Supreme Court has held that a request for findings of fact and conclusions of law does not extend the time for perfecting the appeal of a judgment rendered as a matter of law, because in such a case, the findings and conclusions can have no purpose and should not be requested or made. The Court said examples of that type of proceeding include cases that are dismissed on the pleadings and cases where the judgment is rendered without an evidentiary hearing. IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). In this case, the trial court determined from the pleadings, after argument but without hearing any evidence, that the case should be dismissed. Under the authority of IKB, we hold that the request for findings of fact and conclusions of law did not extend the appellate timetable. Accordingly, the time for filing the notice of appeal expired thirty days after the judgment was signed by the trial judge. Tex. R. App. P. 26.1(a)(4). The docketing statement filed by the Fosters, even if considered to suffice as a notice of appeal, was not filed until approximately eighty days after the judgment was signed. It was thus not timely. When a timely notice of appeal is not filed, this Court does not have jurisdiction to consider the appeal on its merits. The appeal is dismissed for want of jurisdiction. William J. Cornelius Chief Justice Date Submitted: May 8, 2002 Date Decided: May 8, 2002 Publish 1. As authority for this position, the Fosters cite an inmate litigation lawsuit decided by the United States Supreme Court in which the Court stated that it would hold pro se complainants to less stringent standards than lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Although, because of their status as prisoners, we review the claims of inmates proceeding pro se in civil suits with liberality and patience, that practice does not extend beyond that context. See $429.30 In United States Currency v. State, 896 S.W.2d 363, 365 (Tex. App.-Houston [1st Dist.] 1995, no writ). 2. These cases were decided under the former Rules of Appellate Procedure, which required a cost bond to perfect the appeal rather than the notice of appeal required under the current version of the rules. n="false" UnhideWhenUsed="false" Name="Medium Grid 2 Accent 4"/> In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-11-00145-CR ______________________________ CLEO RUSSELL KAUFMAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 27th Judicial District Court Bell County, Texas Trial Court No. 63507 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Cleo Russell Kaufman, having been found guilty by a jury for sexual assault and having been assessed a punishment of nine years’ imprisonment, has filed this appeal.[1] Kaufman’s attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, examining possible issues which could be raised for consideration on appeal, but offering explanations why those potential issues would be unsuccessful. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). Counsel mailed a copy of the brief and a letter to Kaufman on September 26, 2011, informing Kaufman of his right to file a response and to access the record. Kaufman opted to pursue that course of action and filed his pro se response December 27, 2011. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. We have reviewed both the brief filed by Kaufman’s counsel and the pro se response filed by Kaufman. Kaufman argues that the evidence is insufficient to support the conviction and that trial counsel did not provide effective assistance because he did not obtain additional witnesses to testify about Kaufman’s nonviolent nature. (Counsel called and questioned two witnesses as to this issue, both of whom testified that Kaufman had the reputation of being a law-abiding citizen.). Kaufman argues that trial counsel should have obtained even more witnesses to testify that his character traits were not those of a violent person. See Stitt v. State, 102 S.W.3d 845, 849 (Tex. App.—Texarkana 2003, pet. ref’d). He also complains of a portion of the State’s closing arguments wherein the jurors were asked to consider the effect their decisions would have on the family or friends of the jurors who might have been subject to similar attacks. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), the defendant must first prove that counsel’s representation fell below an objective standard of reasonableness and also that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. Where an appellate record is silent as to why trial counsel failed to take certain actions, the appellant has failed to rebut the presumption that trial counsel’s decision was in some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). The record is silent on this situation. Therefore, no genuinely arguable issue on ineffective assistance has been raised. Insofar as jury argument is concerned, before a defendant will be permitted to complain on appeal about an erroneous jury argument, he will have to show that he timely objected and pursued that objection to an adverse ruling. Mays v. State, 318 S.W.3d 368, 394 n.103 (Tex. Crim. App. 2010). No objection to the argument of State’s counsel was made. Further, a plea for law enforcement, such as this, is one of the types of argument that is an appropriate subject for argument. See Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). Kaufman also states, without supporting argument, that the evidence is insufficient to have convicted him of the crime with which he was charged. It is not. In evaluating legal sufficiency, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of indecency with a child by contact beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.––Texarkana 2010, pet. ref’d). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 779 (Tex. Crim. App. 2007). In this analysis, we use a hypothetically-correct jury charge to evaluate both the legal and factual sufficiency of evidence. Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried. Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under the offense for which Kaufman was charged, it was necessary for the State to prove beyond a reasonable doubt that (1) Kaufman (2) knowingly or intentionally (3) penetrated the victim’s sexual organ or anus by any means (4) without the victim’s consent. Tex. Penal Code Ann. § 22.011(A)(1) (West 2011). The victim in Kaufman’s case testified positively and precisely about the attack she suffered and the circumstances surrounding the attack. The jury executed its function, finding her testimony credible and believable. Under this state of the evidence, we have no authority to revisit that determination. We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We, therefore, agree with counsel’s assessment that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We affirm the judgment of the trial court.[2] Bailey C. Moseley Justice Date Submitted: January 17, 2012 Date Decided: January 19, 2012 Do Not Publish [1]Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. [2]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3 (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.