Harkcom, Patricia Elizabeth, PD-0180-15

Background

Appellant Patricia Harkcom was convicted by jury of possessing <1 gram methamphetamine and sentenced to 24 months (state-jail felony). Judgment was signed Oct 31, 2012; sentence was pronounced Oct 2, 2012.
On Oct 31 (29 days after sentencing) while incarcerated and pro se, Harkcom filed a court form requesting appointment of counsel and a pauper’s oath; the trial judge handwrote “ON APPEAL” on the order and appointed counsel that day.
Appellate counsel was notified Nov 1, 2012 and filed a notice of appeal and an untimely motion for new trial on Nov 8, 2012; the trial court denied the post-trial motions on Dec 3, 2012.
The Second Court of Appeals dismissed the appeal for want of jurisdiction because no timely notice of appeal or timely motion for extension of time (Tex. R. App. P. 26.3) was filed within the statutory deadline measured from sentencing.
A split panel produced a published majority opinion (dismissal) and a dissent (would have found the pauper’s oath/request + trial court’s “ON APPEAL” marking, under the unique timing here, sufficient to show intent to appeal).

Issues

Issue	Plaintiff's Argument (Harkcom)	Defendant's Argument (State / Majority)	Held
Whether a postjudgment application for appointment of counsel/pauper’s oath filed within the appeal period can function as a timely notice of appeal	Harkcom: her pro se application, filed the same day the written judgment was entered and marked "ON APPEAL" by the trial court, was a bona fide attempt to invoke appellate jurisdiction under Few and Rule 25.2(c)(2)	State/Majority: the application requests counsel but does not expressly show a desire to appeal; precedent holds such documents generally do not qualify as a notice of appeal	Majority: application did not constitute a timely notice; appeal dismissed for lack of jurisdiction
Whether the appellate court should liberally construe imperfect filings to preserve appeals under Few v. State	Harkcom: Few requires courts to look to the totality of circumstances and treat bona fide attempts liberally to avoid elevating form over substance	State/Majority: Few requires liberal construction but not abrogation of the notice requirement; prior cases (Clark, Rivera, etc.) limit treating pauper’s oaths as notices	Held: Liberal construction insufficient here—no timely notice was shown
Effect of trial court’s handwritten “ON APPEAL” on the order appointing counsel	Harkcom: the judge’s notation evidences the court’s understanding that the filing was to invoke appeal rights	State/Majority: the notation is not determinative; could merely reflect that counsel would be needed if appeal later pursued	Held: handwritten notation does not convert the appointment application into a notice of appeal
Availability of remedy for late filing	Harkcom: appellate court could treat filing as sufficient or allow extension under Rule 26.3	State/Majority: no timely motion for extension was filed in the court of appeals within the 15-day grace period; only the Court of Criminal Appeals can grant out-of-time appeals	Held: dismissal for lack of jurisdiction; only Court of Criminal Appeals may grant out-of-time relief

Key Cases Cited

Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007) (rules construed liberally; bona fide notices should be honored)
Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) (postconviction request for counsel does not substitute for a written notice of appeal; out-of-time appeal granted)
Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (failure to file timely notice/motion for extension requires dismissal)
Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) (timely notice of appeal required to vest jurisdiction)
Gonzales v. State, 421 S.W.3d 674 (Tex. Crim. App. 2014) (notice showing desire to appeal is sufficient even if filed imperfectly)
Taylor v. State, 424 S.W.3d 39 (Tex. Crim. App. 2014) (liberal construction applies but does not eliminate notice requirements)
Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988) (pauper’s oath/request for counsel did not perfect appeal)