Harkcom, Patricia Elizabeth, PD-0180-15

Background

Patricia Harkcom was convicted of possession of methamphetamine; sentence pronounced in open court on October 2, 2012 (24 months state jail and fines).
Within 30 days (by November 1, 2012) Harkcom filed only a sworn "Application for Appointment of Counsel" (filed Oct. 31) that referenced counsel for the "trial of the charge pending," not an appeal; the judge handwrote "ON APPEAL" on the appointing order and appointed counsel that same day.
A formal Notice of Appeal and related filings were not filed until November 8, 2012 — seven days after the 30-day deadline but within the 15-day grace period of Texas R. App. P. 26.3.
The Second Court of Appeals questioned jurisdiction and ultimately dismissed the appeal for lack of a timely notice of appeal; Harkcom sought discretionary review to this Court.
The State argues (in its brief on discretionary review) that the appointment application did not show a desire to appeal, Rule 26.2 timing is triggered by oral pronouncement of sentence, and Rule 26.3 requires both a trial-court notice and an appellate-court motion for extension — so dismissal was proper.

Issues

Issue	Plaintiff's Argument (Harkcom)	Defendant's Argument (State)	Held
Whether the sworn "Application for Appointment of Counsel" filed within 30 days constituted a sufficient notice of appeal	The application, read in context, showed a bona fide attempt to invoke appellate jurisdiction	The application requested counsel for trial, did not mention appeal or an appealable order, so it was not a notice of appeal	Court of Appeals dismissed for lack of timely notice; State urges affirmance
Whether Few v. State requires liberal construction here so the defect should be cured	Few supports liberal construction of defective notices to preserve timely appeals	Few is distinguishable because Few involved an actually timely notice (wrong cause number); liberal construction doesn’t dispense with the requirement of a genuine timely notice	Court of Appeals applied Few correctly as limited precedent; dismissal stands
Whether a notice filed within the 15-day grace period but after 30 days implies a motion for extension under Rule 26.3 (per Verburgt/Hone)	An implied motion for extension should be recognized so Harkcom’s Nov. 8 filing suffices	Rule 26.3 requires (1) filing the notice in trial court and (2) filing a motion in the appellate court; Olivo controls in criminal cases and rejects implied-extension rule	State argues Olivo controls; because no Rule 26.3 motion was filed in appellate court, jurisdiction was not invoked
Whether the deadline to file notice of appeal is keyed to signing of the written judgment or to oral pronouncement of sentence	Harkcom suggested timing tied to written judgment receipt	Rule 26.2 is triggered by pronouncement of sentence in open court (oral pronouncement is the appealable event)	State: timing begins at oral pronouncement; written judgment signing is not the trigger

Key Cases Cited

Few v. State, 230 S.W.3d 184 (Tex. Crim. App. 2007) (liberal construction allows amendment of defective but timely notices of appeal)
Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (in criminal cases a notice filed within the 15-day grace period without a separate appellate-court motion for extension does not vest jurisdiction)
Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (civil rule recognizing implied motion for extension in certain circumstances)
Hone v. Hanafin, 104 S.W.3d 884 (Tex. 2003) (civil case applying implied-extension equitable rule)
Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003) (trial counsel must advise defendant re: appellate rights; filings requesting appointed counsel alone do not always serve as a notice of appeal)
Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002) (oral pronouncement of sentence is the appealable event)
Castillo v. State, 369 S.W.3d 196 (Tex. Crim. App. 2012) (reaffirms Rule 26.3’s dual requirement for post-deadline extensions)