Roy D. Mitchell v. Wells Fargo Bank

IN THE TENTH COURT OF APPEALS No. 10-10-00046-CV Roy D. Mitchell, Appellant v. Wells Fargo Bank, Appellee From the County Court at Law Ellis County, Texas Trial Court No. 07C3984 MEMORANDUM Opinion Roy D. Mitchell appealed the trial court’s judgment in favor of Wells Fargo Bank in Wells Fargo’s action for forcible detainer. This Court affirmed the trial court’s judgment on September 3, 2008. Mitchell petitioned the Texas Supreme Court for review which dismissed the petition. This Court’s mandate in that appeal then issued on August 18, 2009. Mitchell has now attempted to appeal further proceedings he initiated in the trial court regarding the same suit by Wells Fargo. In a letter dated February 5, 2010, the Clerk of this Court warned Mitchell that the appeal was subject to dismissal because it appeared the action of the trial court was not appealable. The Clerk also warned Mitchell that unless a response was filed showing grounds for continuing the appeal, the appeal would be dismissed. Mitchell has not responded to the Clerk’s letter. Accordingly, this appeal is dismissed. Tex. R. App. P. 42.3. Further, absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing. Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5; Tex. Gov’t Code Ann. § 51.207(b); § 51.941(a) (Vernon 2005); and § 51.208 (Vernon Supp. 2009). Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case. Tex. R. App. P. 2. The write-off of the fees from the accounts receivable of the Court in no way eliminates or reduces the fees owed by Mitchell. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Appeal dismissed Opinion delivered and filed March 10, 2010 [CV06] t-size: 14pt"> Appellant Juan S. Dominguez pleaded guilty to two charges of felony DWI. See Tex. Penal Code Ann. § 49.09(b) (Vernon Supp. 1998). In exchange for his pleas, the State recommended that Dominguez receive three years’ imprisonment and a $1,000 fine in each case to run concurrently. The State took no position on Dominguez’s application for community supervision. The court rejected Dominguez’s request for community supervision and assessed his punishment at three years’ confinement and a $1,000 fine in each case pursuant to the State’s plea recommendation. Dominguez filed general notices of appeal in each case asserting that his pleas were involuntary because he expected to receive community supervision. To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea, an appellant must comply with Rule 25.2(b)(3) of the appellate rules, even when challenging the voluntariness of his plea. Elizondo v. State, No. 10-98-178-CR, slip op. at 3-4, 1998 WL 784021, at *2 (Tex. App—Waco Nov. 12, 1998, no pet. h.); Villanueva v. State, No. 02-96-563-CR, slip op. at 5-6, 1998 WL 304336, at *2 (Tex. App.—Fort Worth June 11, 1998, no pet.); contra Rigsby v. State, 976 S.W.2d 368, 369 n. 1 (Tex. App.—Beaumont 1998, no pet. h.); Session v. State, No. 06-98-109-CR, 1998 WL 598405, at *2 (Tex. App.—Texarkana Sept. 11, 1998, no pet.) (both holding compliance with Rule 25.2(b)(3) unnecessary when voluntariness of plea is challenged). Rule 25.2(b)(3) provides that in cases where a defendant has pleaded guilty or nolo contendere and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the defendant’s notice of appeal must: (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). Dominguez’s general notices of appeal do not contain any of these three required recitations. Thus, they do not comply with Rule 25.2(b)(3). For this reason, we do not have jurisdiction over these appeals. Accordingly, we dismiss Dominguez’s appeals. PER CURIAM Before Chief Justice Davis, Justice Cummings, and Justice Vance Appeals dismissed Opinion delivered and filed December 9, 1998 Do not publish