in Re David L. Jones and Alice Redeker, Relators

NO. 07-04-00405-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D OCTOBER 11, 2004 ______________________________ IN RE DAVID L. JONES AND ALICE REDEKER, RELATORS _________________________________ Before QUINN and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION ON PETITION FOR WRIT OF MANDAMUS Relators David Lee Jones and Alice Redeker seek a writ of mandamus requesting that we order the Honorable Felix Klein, Judge of the 154th District Court of Lamb County, to vacate his order of April 23, 2004, denying their motion to compel discovery. In response, among other things, real party in interest, William B. Jones, Jr. contends that relators have not demonstrated that the denial of their motion to compel discovery constituted a clear abuse of discretion by the trial court. For the reasons set forth, we deny the requested relief. Although the discovery rules encourage trial courts to limit discovery to avoid undue burdens in production, real party had the burden in the trial court to produce some evidence to support his request for protection. In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). Here, relators are entitled to mandamus relief "only to correct a trial court's clear abuse of discretion when no adequate remedy at law exists." In Re Alford Chevrolet-Geo, 997 S.W.2d at 176. In our review, regarding factual matters, as an appellate court we may not substitute our judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992); In re Energas Co., 63 S.W.3d 50, 51 (Tex. App.--Amarillo 2001, orig. proceeding). Therefore, in determining whether mandamus should issue, we must focus on the record that was before the trial court and decide whether the decision was not only arbitrary but also amounted to a clear and prejudicial error of law. In re Bristol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998). The April 23, 2004 order of the trial court which relators challenge provides in part: After hearing the evidence and argument of counsel, the Court finds that Plaintiffs' Motion to Compel Discovery should be in all things denied. Although the order indicates that relators' motion was denied after the trial court heard evidence, the record presented here does not include a reporter's record of the hearing or an authenticated transcript of the relevant testimony per Rule 52.7(a)(2) of the Texas Rules of Appellate Procedure. Moreover, relators' fact statement in their petition is not supported by a verified affidavit as required by Rule 52.3. Because we have not been provided with a record of the evidence heard by the trial court, we are unable to determine whether the denial of relators' motion was a clear abuse of discretion by the trial court. Accordingly, the petition for writ of mandamus is denied. Don H. Reavis Justice enUsed="false" QFormat="true" Name="Title"/> NO. 07-11-00215-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B AUGUST 22, 2011 CHARLES HAROLD FISHER, APPELLANT v. THE STATE OF TEXAS, APPELLEE FROM THE 100TH DISTRICT COURT OF CARSON COUNTY; NO. 4409; HONORABLE STUART MESSER, JUDGE Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ORDER ON MOTION FOR REHEARING Appellant Charles Harold Fisher has filed a motion asking reconsideration of our order of June 28, 2011, dismissing his appeal for want of jurisdiction. The State responded at our request. For the reason that follows, we grant appellant’s motion for rehearing, withdraw our opinion and judgment of June 28, 2011, and reinstate the appeal. The trial court imposed sentence on appellant on February 25, 2011. On May 25, 2011, appellant filed in this court a notice of appeal and motion for new trial, which we transmitted to the clerk of the trial court. The clerk’s record was subsequently filed. It contained a copy of a notice of appeal bearing only the May 25 file mark of this court and a motion for new trial bearing no file mark.[1] Because the record did not indicate appellant timely filed a motion for new trial, his notice of appeal, filed eighty-nine days after the imposition of sentence, was untimely. We dismissed the case for want of jurisdiction by order of June 28. Appellant filed a motion for rehearing contending he timely filed a motion for new trial by delivering the pleading to the judge of the trial court. Two days after the motion was filed a supplemental clerk’s record was filed. It contains a letter of July 11, 2011, from the trial court to counsel for appellant and the State. The entire body of the trial court’s letter reads as follows: [Appellant’s counsel] has asked that I write a letter acknowledging he sent me a copy of a Motion for New Trial in the above referenced case. [Appellant’s counsel] did send me a copy of a Motion for New Trial within the 30 days (sic) time period, and asked for a hearing several times. I did not grant a hearing on the Motion. In its response, the State concludes appellant’s motion for new trial was timely filed. It asks that we grant appellant’s motion for rehearing and reinstate the appeal. Both the State and appellant alternatively request reinstatement in the interest of justice. The fundamental issue here remains the timeliness of appellant’s motion for new trial.[2] For if it was filed within thirty days of sentencing, his notice of appeal was timely and our jurisdiction attached.[3] Otherwise, we are without jurisdiction. “Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist.” Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996) (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex.Crim.App. 1964)). And regardless of this court’s, or the parties’, opinions of the justness of a cause, our jurisdiction is not invoked absent a timely-filed notice of appeal. Slaton v. State, 981 S.W.2d 208, 209 (Tex.Crim.App. 1998) (per curiam) (appellate jurisdiction invoked by timely filing notice of appeal and Tex. R. App. P. 2 not available to extend time for filing notice of appeal in criminal case); Olivo, 918 S.W.2d at 522; see Tex. R. App. P. 25.2(b). Nor can jurisdiction be conferred by agreement of the parties. Castle & Cooke Mortg., LLC v. Diamond T Ranch Dev., Inc., 330 S.W.3d 684, 687 (Tex.App.--San Antonio 2010, no pet.) (noting “jurisdiction exists by operation of law and cannot be conferred or taken away by consent or waiver”). Ordinarily, a document in litigation is filed with the clerk of the trial court; however, under Rule of Civil Procedure 74 the “judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and time and forthwith transmit them to the office of the clerk.” Tex. R. Civ. P. 74. This rule has been recognized in criminal proceedings. Garza v. State, 919 S.W.2d 788 (Tex.App.--Houston [14th Dist.] 1996, no pet.) (bond forfeiture); Rodriguez v. State, No. 02-04-0118-CR, 2004 Tex. App. Lexis 10470, at *4 (Tex.App.--Fort Worth Nov. 18, 2004, no pet.) (per curiam, mem. op., not designated for publication). By affidavit or otherwise we may ascertain the matters of fact necessary to the proper exercise of our jurisdiction. Tex. Gov’t Code Ann. § 22.220(c) (West Supp. 2010); Jones v. Griege, 803 S.W.2d 486, 488 (Tex.App.--Dallas 1991, no writ) (in determining jurisdiction to consider interlocutory order, court could consider statements in attorney’s letter to court). While neither party nor the trial judge has expressly referred to Rule 74, and while it is only with some effort that we construe the trial judge’s July 11 letter to say that appellant filed his motion for new trial with the judge by sending him a copy of it “within the 30 days time period,” we find that the trial judge exercised his discretion under Rule 74 and accepted the motion for filing. See Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex. 1996) (per curiam) (mentioning discretion of trial court to recognize document mailed to judge as filed under Rule 74); Tex. R. Civ. P. 74 (judge may permit papers to be filed with him). While the record does not indicate the district judge noted on the motion filed with him the filing date and time, and forthwith transmitted it to the clerk as Rule 74 requires, on the record before us we will not find this omission determinative. Cf. Biffle v. Morton Rubber Industries, Inc., 785 S.W.2d 143, 144 (Tex. 1990) (per curiam) (“An instrument is deemed in law filed at the time it is delivered to the clerk, regardless of whether the instrument is filemarked”). When accepting papers for filing, a judge should fully comply with the requirements of Rule 74; otherwise, the purpose of filing documents is thwarted. See Garza, 919 S.W.2d 788, 790 (“An essential purpose of filing documents is to make them part of the records of the district or county clerk, as the case may be, and trial court for future reference and so that the occurrence and dates of filings can later be verified”). We conclude appellant’s motion for new trial was timely filed by delivering a copy to the judge of the trial court according to Rule 74. We therefore grant appellant’s motion for rehearing, withdraw our opinion and judgment of June 28, 2011, and reinstate the case. The reporter’s record shall be filed within thirty days of the date of this order. Briefing deadlines shall fall according to the Rules of Appellate Procedure. Tex. R. App. P. 38.6. It is so ordered. Per Curiam Do not publish. [1] While this may be the copy of appellant’s motion for new trial filed in this court, the fact is not disclosed by the record. [2] In a criminal case, a motion for new trial must be filed no later than thirty days after the date the court imposes sentence in open court. Tex. R. App. P. 21.4(a). [3] In a criminal case, if a defendant timely files a motion for new trial, a notice of appeal must be filed within ninety days after the day sentence is imposed in open court. Tex. R. App. P. 26.2(a)(2).