Larry Donnell Blue v. State

IN THE TENTH COURT OF APPEALS No. 10-08-00316-CR No. 10-08-00325-CR Larry Donnell Blue, Appellant v. The State of Texas, Appellee From the 85th District Court Brazos County, Texas Trial Court Nos. 06-00734-CRM-85 and 06-01295-CRF-85 MEMORANDUM Opinion Larry Donnell Blue filed his notices of appeal in these cases 102 days after the court imposed sentence. The Clerk of this Court notified the parties that these appeals are subject to dismissal for want of jurisdiction because it appears that the notices of appeal are untimely. Blue has responded with a Motion to Reinstate in which he contends the notices of appeal are timely because they were filed within 30 days after his motions for new trial would have been overruled by operation of law. We disagree and will dismiss these appeals. The trial court imposed sentence in both cases on May 8, 2008.[1] Blue timely filed motions for new trial on May 28. See Tex. R. App. P. 21.4(a). The trial court signed an order denying both motions for new trial on June 19, but this order was not entered on the record until August 19. Blue filed his notices of appeal on August 18. Blue states that he did not receive notice of the court’s order denying his motions for new trial until August 12.[2] He suggests that the deadline for his notice of appeal should be calculated from the date when his motions for new trial would have been overruled by operation of law—July 22.[3] He then cites Rule of Appellate Procedure 26.2(a)(1) for the proposition that a notice of appeal is not due until thirty days after the entry of an appealable order. Id. 26.2(a)(1). An order denying a motion for new trial is not an independently “appealable order” as that term is used in Rule 26.2(a)(1). And a trial court’s inaction which allows a motion for new trial to be overruled by operation of law cannot in any way be described as an “appealable order” which the court has “entered” as required by this rule. Rather, when a criminal defendant seeks to appeal a judgment of conviction, the deadline for the notice of appeal is calculated from the date “sentence is imposed or suspended in open court.” Id. 26.2(a). If no motion for new trial is timely filed, the notice of appeal is due in thirty days. Id. 26.2(a)(1). Conversely, if a motion for new trial is timely filed (regardless of the court’s ruling on that motion), the notice of appeal is due in ninety days. Id. 26.2(a)(2). And these deadlines may be extended if the defendant files an extension request within fifteen days after the applicable deadline. Id. 26.3. Here, because Blue timely filed motions for new trial in both cases, his notices of appeal were due on or before August 6. Id. 26.2(a)(2). Any extension request would have been due on or before August 21. Id. 26.3. Blue did not file his notices of appeal until August 18. He did not file an extension request. Accordingly, we deny Blue’s motion to reinstate these appeals and dismiss both appeals for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d). FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Appeals dismissed Opinion delivered and filed October 1, 2008 Do not publish [CR25] [1] Blue was convicted in trial court cause no. 06-00734-CRM-85 (appellate cause no. 10-08-00316-CR) of resisting transportation (a misdemeanor) and in trial court cause no. 06-01295-CRF-85 (appellate cause no. 10-08-00325-CR) of evading detention with a vehicle (a felony). The trial court imposed sentence in both cases on May 8 and signed the judgment in the misdemeanor case on the same date. The court did not sign the judgment in the felony case until May 14. Nevertheless, appellate deadlines in criminal appeals are calculated from the date of imposition of sentence, rather than the date the judgment is signed. See Tex. R. App. P. 26.2(a); cf. id. 26.1 (in civil appeals, appellate deadlines are calculated from the date the judgment is signed). [2] Blue also suggests that the trial court may not have actually signed the order denying his motions for new trial until August 12 notwithstanding the notation that the order was signed on June 19. As will be seen however, the date the trial court signed this order is irrelevant for purposes of calculating appellate deadlines. [3] Blue says this date would be July 23, but our calculations show that July 22 is 75 days after the date of imposition of sentence. Id. 21.8. Appellees From the 170th District Court McLennan County, Texas Trial Court # 99-2717-4 DISSENTING Opinion This is an appeal of a wrongful death and survival suit. We should reverse and render. Because the majority does not do so, I respectfully dissent. Procedural Prelude In the past we have had so few opinions withdrawn that no particular problems were created if the opinions were withdrawn by an order separate from the new opinions being issued. The problem is that over the past year we have withdrawn numerous opinions, with and without motions for rehearing, and when on motion for rehearing, with and without requesting responses. Issuing multiple opinions in the same appeal creates confusion. A person can hold in their hands two opinions from this Court, both certified by the clerk as authentic, which are not the same. Our past practice has been that the latter normally does not reference the existence of the earlier opinion that is being withdrawn. Our past practice did not present a problem when the issuance of another opinion in the same case was rarely done. At least the problem was manageable. But due to the greatly increased frequency of the majority issuing multiple opinions, I thought it was an appropriate time to adopt the procedure utilized by the Texas Supreme Court; to include the order, and explanation if needed, withdrawing the prior opinion as the first paragraph of the new opinion. See e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 381 (Tex. 2000). This is a simple procedure for the convenience of anyone reading the opinions to understand, and easily determine which opinion is the Court’s final opinion. This process also allows a researcher, interested in the ultimate disposition, to easily track backwards, if necessary, to see the development of the final opinion. Because the majority refuses to provide that information in its opinion, I do so in this dissenting opinion. Prior History of This Appeal The Court’s opinion affirming the trial court’s judgment, the judgment, and Chief Justice Gray’s dissenting opinion, all dated October 6, 2004, were withdrawn November 10, 2004 and the Court’s opinion, Chief Justice Gray’s dissenting opinion, and the judgment of this date are substituted therefore. With these comments regarding the history of this appeal, I now proceed to the substance of my dissenting opinion. The Dissenting Opinion In Appellants’ first issue, they contend that there was no evidence of proximate cause and no evidence that Appellants failed to perform an appropriate psychiatric screening examination. See 42 U.S.C. § 1395dd(a) (2000). Appellees contend that Appellants waived their issue by failing to object to the testimony of one of Appellees’ expert witnesses. The cases cited by Appellees, to the extent that they are on point, concern the waiver of objections to the methodological reliability of expert testimony, not the sufficiency of the evidence. See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); Crown Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex. App.—Houston [14th Dist.] 2001), rev’d, 136 S.W.3d 227 (Tex. 2004); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n.2 (Tex. App.—San Antonio 1998, pet. denied).[1] By making an objection to the charge, filing a motion to disregard jury questions and for judgment notwithstanding the verdict, and filing a motion for new trial, all on the grounds that there was no evidence of proximate cause, Appellants preserved their no-evidence complaint. See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex. 2004); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992). Lance Dowell was admitted to the Providence Health Center emergency room for treatment of shallow self-inflicted cuts to his wrists. A nurse employed by Appellants performed a psychological evaluation of Lance. Appellees contend that Appellants failed to promulgate or enforce policies for psychological screenings, that the nurse failed to perform an appropriate screening, and that these failures caused Lance’s death. The undisputed evidence was that when the nurse evaluated Lance, Lance was lucid, calm, remorseful, stable, and not actively suicidal. There is no evidence that, if Appellants had recommended admission to the DePaul Center, a psychiatric hospital, Lance would have agreed or could have been compelled to be admitted. After Lance was released from Providence to Appellees, and until his death, Appellees saw nothing out of the ordinary about Lance except that he was “more withdrawn.” The day that he was released from the hospital, Lance visited with his family, went to a rodeo, and visited with friends. The next day, he had lunch with his family and helped a friend bale hay. About a day and a half after he left Providence, Lance hanged himself. Appellees’ expert testified, at most, that had Lance been admitted to DePaul the probability that he would commit suicide upon his release would have been reduced. Under these facts, there is no evidence that Appellants’ conduct was a substantial cause of Lance’s death. See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Ramos, 143 S.W.3d 794, 798-800 (Tex. 2004); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex. 2002); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998). Accordingly, we should sustain Appellants’ first issue. We should, then, after sustaining Appellants’ first issue, reverse and render judgment that Appellees take nothing from Appellants. Therefore, we should not consider Appellants’ other issues. Because the disposition of the first issue would be dispositive of the appeal, I will not discuss my disagreements, and there are many, with the remainder of the majority’s opinion. I note only in passing that an estate, by that name, is not a proper party to litigation. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n.2 (Tex. 2000); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975). I also note that two notices of appeal from the same judgment should bear the same docket number on appeal. Tex. R. App. P. 12.2(c). Docketing this cause and Cause No. 10-01-00420-CV, styled Pettit v. Dowell, as two separate appeals was improper. TOM GRAY Chief Justice Dissenting opinion delivered and filed March 30, 2005 [1] See also Coastal Transp. Co v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).