Castillo, Ex Parte Mario Amaro

369 S.W.3d 196

Tex. Crim. App.

2012

Check Treatment

Ex Parte Mario Amaro CASTILLO, Appellant, v. The STATE of Texas.

No. PD-1427-11.

Court of Criminal Appeals of Texas.

June 20, 2012.

369 S.W.3d 196

gent driving.²⁰ By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state‘s second ground for review.

Conclusion

We hold that the evidence was legally sufficient to support the jury‘s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant‘s remaining points of error.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, PRICE, WOMACK, KEASLER, and HERVEY, JJ., joined.

Appellant filed his notice of appeal one day late. His notice of appeal and motion for extension of time were picked up by Federal Express after business hours on the last day of filing and delivered to the trial court the next day. The court of appeals dismissed his appeal for lack of jurisdiction.¹ Appellant argues that the “timely mailed, timely filed” mailbox rule of Texas Rule of Appellate Procedure (TRAP) 9.2(b), which explicitly requires timely mailing via the United States Postal Service, is antiquated and should be read to include private couriers, such as Federal Express.² We conclude that the plain, unambiguous language of the rule requires timely mailing with the U.S. Postal Service, not a private courier. Until and unless the Supreme Court of Texas and this Court change the language of Rule 9.2(b), the “timely mailed, timely filed” mailbox rule applies only to documents delivered to the U.S. Postal Service.

I.

Appellant pled nolo contendere to the misdemeanor offense of assault-family violence in 2006. He successfully completed his sentence of twenty months of community supervision in 2008. Three years later, appellant filed an 11.072³ application for a writ of habeas corpus in the county court. He alleged that his original plea was involuntary based on ineffective assistance of counsel because he was not properly admonished of the deportation consequences of that plea. The trial judge denied relief on March 30, 2011.

Appellant‘s notice of appeal was due on April 29, 2011. But that due date could be extended for an additional fifteen days⁴—until May 16th—by filing a request for an extension of time under TRAP 26.3. Appellant filed both a notice of appeal and a motion for extension of time on May 17, 2011. The court of appeals referred to TRAP 9.2(b)(1)(A) which states that a document received within ten days after the filing deadline is considered timely if it was sent to the proper clerk via the United States Postal Service. Appellant did not use the U.S. Postal Service. Instead, he “provided internet print-outs indicating that the notice of appeal was picked up for delivery by Federal Express at 6:49 p.m. on May 16, 2011, and delivered to the trial court clerk on May 17, 2011.”⁵ The court of appeals therefore dismissed the appeal because appellant‘s notice was untimely by one day.⁷

Appellant petitioned this Court for discretionary review, claiming that the court of appeals‘s holding exalts form over substance by dismissing his appeal “based on a technical non-compliance with the rules of procedure[.]”⁸

II.

Timely filing of a written notice of appeal is a jurisdictional prerequisite to hearing an appeal.⁹ If a notice of appeal is not timely filed, the court of appeals has no option but to dismiss the appeal for lack of jurisdiction.¹⁰ Normally, a notice of appeal is “filed” when it is physically delivered to, and received by, the clerk of the trial court.¹¹ Thus, a notice of appeal may be timely delivered to the clerk by any means: personal delivery, private courier, U.S. mail, or, as permitted or required by local rules, by electronic means, such as fax or e-mail.¹²

A long-standing exception to this “physical delivery” filing requirement was the common-law mailbox rule. As the United States Supreme Court stated in 1884,

The rule is well settled that if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.¹³

The rationale for the “timely mailed, timely filed” mailbox rule is two-fold. First, many citizens who must file a document with a governmental entity live too far away to personally deliver that document to the entity; they should not be penalized by being required to send their documents earlier than those citizens who happen to live in close proximity to that entity. Second, the law assumes that governmental entities, such as the United States Postal Service, perform their jobs diligently, if not always in a timely manner.¹⁴

In 1954, Congress codified a version of the common law “timely mailed, timely filed” mailbox rule for documents filed with the Internal Revenue Service. “The codified rule was designed to alleviate taxpayer hardship resulting from the vagaries of the I.R.S. and the postal system[.]”¹⁵ Under that statutory mailbox rule, a document that must be filed on a certain date is considered to be timely filed if it is postmarked on that date and timely deposited in the United States mail system on that date.¹⁶ The plain, unambiguous language of that statute has been strictly construed to cover only those documents that have been delivered to and postmarked by the United States Postal Service, so delivery by private couriers, such as FedEx and UPS, is not covered by the mailbox rule.¹⁷

Texas has long followed that same mailbox rule in its Rules of Civil Procedure and Rules of Appellate Procedure. Rule 5 of the Texas Rules of Civil Procedure is titled “Enlargement of Time.” It was amended, effective March 1, 1950, to codify the “timely mailed, timely filed” mailbox rule.¹⁸ Rule 5 continues to provide an exception to the rule that documents are filed upon physical delivery. It currently reads:

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.¹⁹

The mailbox rule in Civil Rule 5, like the federal statute, applies only to documents that are deposited with the U.S. Postal Service, not to documents delivered by a private courier.²⁰

That same “timely mailed, timely filed” mailbox rule is in the Texas Rules of Appellate Procedure. Rule 9.2(b)—applicable to both civil and criminal cases—reads,

(b) Filing by Mail.

(1) Timely Filing. A document received within ten days after the filing deadline is considered timely filed if:

(A) it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail;

(B) it was placed in an envelope or wrapper properly addressed and stamped; and

(C) it was deposited in the mail on or before the last day for filing.

(2) Proof of Mailing. Though it may consider other proof, the appellate court will accept the following as conclusive proof of the date of mailing:

(A) a legible postmark affixed by the United States Postal Service;

(B) a receipt for registered or certified mail if the receipt is endorsed by the United States Postal Service; or

(C) a certificate of mailing by the United States Postal Service.²¹

The plain, unambiguous language of this rule speaks to the timely mailing of a document via the “United States Postal Service.” It does not permit any other type of delivery or private courier system.

III.

In this case, appellant did not timely deliver his notice of appeal to the clerk of the trial court. It was due on April 29, 2011. However, Rule 26.3 provides a measure of relief for the inadvertent slowpoke.²² It permits an extension of time after the deadline to file notice of appeal, if, within fifteen days after the deadline, the party files (a) the notice of appeal in the trial court; and (b) a motion for extension of time under Rule 10.5(b)(2) in the court of appeals. Appellant did not comply with Rule 26.3 either; he did not physically deliver the notice of appeal within that fifteen-day grace period to the trial court by any appropriate means—personal delivery, private courier, U.S. mail, fax or e-mail. And he did not comply with the “timely mailed, timely filed” mailbox-rule exception to the physical-delivery rule by delivering his notice of appeal to the United States Postal Service within that fifteen-day extension period. He waited until 6:49 p.m.—after the close of business hours at the courthouse—to have Federal Express pick up his documents and deliver them to the trial court clerk the next day. That next day was the sixteenth day after the notice of appeal (and the motion for an extension) was due. This was just one day late, but one day is enough to deprive the appellate court of jurisdiction to consider appellant‘s appeal under the Texas Rules of Appellate Procedure.²³

Appellant argues that he “took all steps necessary in order to perfect a late filing of his Notice of Appeal except the requirement of Tex.R.App. Proc. 9.2(b)(1) to send by United States Postal Service.” But that requirement is not optional. Like the federal taxpayers in Petrulis and Pugsley, appellant argues that the mailbox rule should not be confined to U.S. Postal Service mailboxes, but should include any private courier or delivery system that delivers the documents within ten days.²⁴ Appellant argues that a mailbox rule that applies only to documents deposited in the U.S. mail is “archaic and to hold otherwise [would] frustrate the purpose clearly embodied in the rule.” But, as noted above, the “timely mailed, timely filed” mailbox rule provides a very specific means by which those who cannot timely deliver documents to a given government entity—such as courts or the Internal Revenue Service—in person may timely deliver them to another governmental entity (the United States Postal Service for most litigants or the prison system mailroom for pro se prisoners). If filings are timely delivered to that mailbox or mailroom, the filing citizen bears no blame for delays in the U.S. mail system so long as the document arrives within ten days of the filing date.

As times change, the rules governing acceptable delivery systems may change as well. Our appellate rules already provide for the delivery of documents by electronic means; perhaps they will be amended to provide for a “timely picked-up, timely filed” rule for private couriers.²⁵ But courts must apply the rules that exist today. Those rules contain a “timely mailed, timely filed” mailbox rule that applies only to documents deposited with the United States Postal Service. Appellant did not comply with the plain, unambiguous rule, and so he did not invoke the jurisdiction of the appellate court.

We affirm the judgment of the court of appeals.

ALCALA, J., filed a dissenting opinion in which JOHNSON, J., joined.

I respectfully dissent. I conclude that the court of appeals had jurisdiction over this appeal filed by appellant, Mario Amaro Castillo. It is undisputed that, had appellant sent his notice of appeal and motion for extension of time through the United States Postal Service (USPS), the court of appeals would have jurisdiction over his appeal. But he did not use USPS and, instead, used Federal Express. Consequently, according to the majority opinion, the court of appeals lacked jurisdiction over his appeal.

The only rational basis for disallowing an untimely filed notice of appeal sent by Federal Express while permitting the same notice of appeal sent through USPS is that the plain language of Texas Rules of Appellate Procedure 9.2 refers only to USPS. See TEX.R.APP. P. 9.2(b)(1)(A). That rule states, in relevant part, “A document received within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by United States Postal Service first-class, express, registered, or certified mail[.]” Id. It is time to update the rule to include modern-day, nationally recognized mail carriers. But until then, we must decide (1) whether an appellate court does not have jurisdiction over an appeal delivered by a private courier because the plain language includes only USPS, or (2) whether interpreting the rule to include delivery by Federal Express, a nationally recognized private courier that has demonstrated reliability comparable to that of USPS, better effectuates the intent of that rule.

The Texas Supreme Court has consistently held that appellate courts should not dismiss an appeal for a procedural defect whenever an arguable interpretation of the appellate rules would preserve the appeal:

We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court‘s jurisdiction. Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. Thus, we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.

Verburgt v. Dorner, 959 S.W.2d 615, 616-617 (Tex.1997); see also Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex. 1996) (rejecting lower court‘s reading of appellate procedural filing requirements as “too restrictive“). This Court has “functionally embraced an approach to perfecting appeals and notice of appeal closer to that of the Texas Supreme Court” and “decline[s] to elevate form over substance.”¹ Few v. State, 230 S.W.3d 184, 189 (Tex.Crim.App.2007) (quoting Bayless v. State, 91 S.W.3d 801, 806 (Tex.Crim. App.2002)). I would hold that appellant‘s mere failure—delivery through an undesignated, but reliable, carrier—does not constitute a jurisdictional defect but a procedural irregularity. Compare Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996) (complete failure to file motion for extension of time to file notice of appeal was jurisdictional defect).

Federal Express is a well-established, nationally recognized courier widely regarded as a leader in parcel-delivery reliability. See Fed. Express Corp. v. UPS, 765 F.Supp.2d 1011, 1015 (W.D.Tenn.2010) (discussing 2009 Morgan Stanley Research Parcel Returns Survey ranking Federal Express first under “Service Reliability“).² According to its website, Federal Express “uses a global air-and-ground network to speed delivery of time-sensitive shipments, usually in one to two business days with the delivery time guaranteed,” a claim substantiated by the company‘s track record.³ If the mailbox rule originated because “it is presumed, from the known course of business in the post-office department, that [a document] reached its destination at the regular time, and was received by the person to whom it was addressed,” Rosenthal v. Walker, 111 U.S. 185, 193 (1884), then that presumption must logically extend today to include a private courier such as Federal Express, which has provided over forty years of reliable, nationwide service. See Fed. Express Corp., 765 F.Supp.2d at 1015.⁴ To conclude otherwise would frustrate the intent of the rule of ensuring timely delivery of documents to be filed with the court. As this Court has noted, “[a]s societal conditions change, so do procedural requirements and rules.” Few, 230 S.W.3d at 190. We should construe Rule 9.2 accordingly.

In this case, Federal Express delivered appellant‘s documents to the proper designated address within 24 hours of the time appellant tendered the documents to it. Had appellant used USPS, the documents would have been considered timely received if they have been received nine days after that. A criminal defendant‘s entire appeal should not be thrown out merely because he used a mail carrier that is at least as reliable as USPS, particularly when his mail was actually received on the first of the ten days to which he would have been entitled had he used USPS. To decline jurisdiction on this basis would be to elevate form over substance in contravention of this Court‘s precedent. See Few, 230 S.W.3d at 189; Bayless, 91 S.W.3d at 806. Because appellant‘s use of Federal Express instead of USPS is a harmless procedural defect in light of that company‘s status as a reliable mail carrier, I respectfully dissent.

Notes

(not designated for publication). Compare (in construing statutes, “we necessarily focus our attention on the literal text of the statute in question” because “the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.“).

Appellant‘s ground for review states, “The court of appeals decision incorrectly dismissed petitioner‘s appeal for want of jurisdiction.” See also NICOLE M. MAYERHAUSER & ERICH H. STRASSNER, U.S. DEPT. OF COMMERCE BUREAU OF ECONOMICS, “PROTOTYPE QUARTERLY STATISTICS ON U.S. GROSS DOMESTIC PRODUCT BY INDUSTRY” (2011), available at http://www.bea.gov/scb/pdf/2011/07% 20July/0711_brief_indy_accts.pdf (providing data on industry-level economic performance, listing Federal Express in “Principal Sources of Data for Quarterly Industry and Commodity Output and Prices” under “couriers and messengers“).

TEX.CODE CRIM. PROC. art. 11.072. See “FedEx Express” information page at http://about.van.fedex.com/fedex_express; William B. Cassidy, FedEx Annual Revenue Rises to $39.3 Billion, THE JOURNAL OF COMMERCE ONLINE (Jun. 22, 2011), http://www.joc.com/parcel-package/fedex-annual-revenue-rises-393-billion; Dean Foust, Frederick W. Smith: No Overnight Success, BLOOMBERG BUSINESSWEEK (Sept. 20, 2004), available at http://www.businessweek.com/magazine/content/04_39/b3900031_mz072.htm (“Although FedEx has spawned numerous competitors, it is still the biggest operator, with a 44% share of the air express market.“).

The fifteenth day after April 29th was May 14th, but because that day was a Saturday, the deadline was extended another two days to Monday, May 16th. See TEX.R.APP. P. 4.2(a). In response to the prevalent use of Federal Express, Congress amended the federal mail-fraud statute to include “private interstate commercial carriers, such as ... Federal Express, in addition to the U.S. Postal Service.” (citing 18 U.S.C. § 1341), cert denied, .

Id.

Appellant‘s Brief at 3.

(“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.“).

(“When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction.“); see also (affirming continuing validity of Olivo rule under revised TRAPs).

TEX.R.APP. P. 25.2(b) (“In a criminal case, appeal is perfected by timely filing a sufficient notice of appeal.“); 25.2(c)(1) (“Notice must be given in writing and filed with the trial court clerk.“); 9.2(a)(1) (“A document is filed in an appellate court by delivering it to the clerk of the court in which the document is to be filed[.]“). Under Rule 25.2(c)(1), the notice of appeal is filed if it is timely received by the court of appeals, because the clerk of that court will “immediately record on the notice the date that it was received and send the notice to the trial court clerk.” See (“In a long line of cases, this court has held that a document is ‘filed’ when it is tendered to the clerk, or otherwise put under the custody or control of the clerk.“).

See TEX.R.APP. P. 9.2(c) (“Documents may be permitted or required to be filed, signed, or verified by electronic means by order of the Supreme Court or the Court of Criminal Appeals, or by local rule of a court of appeals. A technical failure that precludes a party‘s compliance with electronic-filing procedures cannot be a basis for disposing of any case.“).

. The Supreme Court quoted an earlier case explaining that “the presumption so arising is not a conclusive presumption of law, but a mere inference of fact, founded on the probability that the officers of the government will do their duty and the usual course of business; and, when it is opposed by evidence that the letters never were received, must be weighed with all the other circumstances of the case, by the jury in determining the question whether the letters were actually received or not.” Id. at 193-94.

See note 15 infra. These same two rationales also supports the “prisoner mailbox” rule, which deems the pleadings of a pro se inmate filed at the time they are delivered to prison authorities for forwarding to the court clerk. ; see also (“Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped ‘filed’ or to establish the date on which the court received the notice.... The pro se prisoner does not anonymously drop his notice of appeal in a public mailbox—he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing“).

Kimberly C. Metzger, Interpretation of the Section 7502 Timely-Mailing, Timely-Filing Requirements: Carroll v. Commissioner and the Liberal/Conservative Interpretation Dilemma, 28 U. TOL. L. REV. 767, 768 (1997). The rationale for that codification is that [i]n filing a tax return by mail, two bureaucracies come into play, the IRS and the Postal Service. Each is geared to handle high volumes of work, and each functions correctly most of the time. Nevertheless, all bureaucracies can mishandle individual items, and the IRS and the Postal Service are no exceptions. The Postal Service has been known to apply illegible postmarks or no postmark at all and has detained mail addressed to the IRS. For its part, the IRS has lost, mishandled, and, in some cases, actually destroyed tax returns. Kenneth H. Ryesky, Mailing is Filing Only if Proof of Mailing is Incontrovertible, 54 TAX‘N FOR ACCT. 153, 154 (1995); see also (“Prior to enactment of the 1954 [I.R.S.] Code, there was no similar provision with regard to timely mailing equaling timely filing. Timely filing depended upon the time of delivery of a petition to the tax court in Washington, D.C. and varied with the geographical area of mailing and the vicissitudes of the mails.“); Sylvan v. Commissioner, 65 T.C. 548, 551 (1975) (“Prior to the enactment of section 7502, timely filing depended on the vicissitudes of the mail, with the time of delivery varying as to the geographical area of mailing, the seasonal demands imposed on the post office, and the postal performance in the individual case presented. In order to alleviate hardships resulting from delays in particular cases, a presumption of timely delivery was often employed.... Congress enacted section 7502 to eliminate the inequities resulting from variations in postal performance when a document is timely mailed.“).

26 U.S.C. § 7502(a)-(b).

See ; ; .

TEX.R. CIV. P. 5. The 1950 amendment read: Provided, however, if a motion for new trial, motion for rehearing, any matter relating to taking an appeal or writ of error from the trial court to any higher court, or application for writ of error is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail one day or more before the last day for filing same, and the envelop or wrapper containing same bears a postmark showing such deposit, the same, if received by the clerk not more than ten days tardily shall be filed by the clerk and be deemed filed in time. See (discussing the 1950 amendment to Rule 5 and holding that appellate court had obtained jurisdiction over appeal when record and motion for extension were filed on the day before the amendment took effect, which was also the day before the motion for extension was due).

TEX R. Civ. P. 5. Rule 21a, dealing with methods of service, also incorporates the mailbox rule for timely delivery of pleadings, and papers in civil lawsuits (“Service by mail shall be complete upon deposit of the paper, enclosed in a postpaid, properly addressed wrapper, in a post office or official depository under the care and custody of the United States Postal Service.“).

Montgomery, 346 S.W.3d at 753 n. 10. (appellate court lacked jurisdiction to consider appeal when appellant sent its motion for new trial “by UPS, a private courier, and not by the United States mail. Therefore, the time for filing cannot be enlarged, and the motion was not timely filed.“); see also .

TEX.R.APP. P. 9.2(b).

A party must state “the facts relied on to reasonably explain the need for an extension.” TRAP 10.5(b)(1). The term “reasonably explain” means a “plausible statement of circumstances indicating that the failure to file within the appropriate deadline was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.” ; . Negligent forgetfulness may suffice; an intentional decision to delay will not. See (“The facts relied upon by appellant to justify the delayed filing of his notice of appeal demonstrate that appellant intended not to file a notice of appeal until it was filed“; when appellant deliberately failed to file a notice of appeal within the normal time limits, but later changed his mind, he did not ‘reasonably explain the need for an extension’ within the meaning of TRAP 10.5(b)(1)(C) so that we may grant the motion for extension pursuant to TRAP 26.3.“). In this case, the court of appeals also noted that appellant not only filed an untimely notice of appeal, but that his motion for an extension of time did not offer “a reasonable explanation for his need to extend the time to file the notice of appeal.” .

(per curiam) (“If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal.“); (“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.“).

See (rejecting taxpayers’ complaint that “mailbox rule” is “bad law” given the “acceptable alternatives to the U.S. Postal Service available today“; noting that only “Congress can rewrite the law to include documents delivered by private carrier services“); (“It is apparent from the numerous references to ‘United States mail’ in the statutes and regulations that section 7502 is intended to apply only to mail delivered by the United States Postal Service and not also to items delivered by a private delivery system.“).

Perhaps Congress has declined to change the “timely mailed, timely filed” United States Postal Service mailbox rule for the Internal Revenue Service to one including private courier or delivery systems because there are thousands of such services scattered across the nation, ranging from giants like Federal Express and UPS to the little “Joe‘s Delivery Service” in Santa Fe Springs. Who would decide which private delivery systems are sufficiently reliable and traceable to come under a proposed “timely picked-up, timely filed” rule? With the advent of electronic filing, this issue may be moot.

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