Donald Spencer v. Joe Pagliarulo and CC Media Holdings Inc.
448 S.W.3d 605
Tex. App.
2014
Check Treatment

Donald E. SPENCER, Appellant v. Joe PAGLIARULO and CC Media Holdings, Inc., Appellees.

No. 01-14-00376-CV.

Court of Appeals of Texas, Houston (1st Dist.).

Sept. 30, 2014.

Rehearing Overruled Oct. 23, 2014.

448 S.W.3d 605

person serve on the jury: “Although we would certainly expect the occasion to be rare, we cannot say ... that under no circumstances could defense counsel justifiably fail to exercise a challenge for cause or peremptory strike against a venireman who deemed himself incapable of serving on the jury in a fair and impartial manner.” . Thus, the court held there was insufficient basis to overcome the presumption that counsel was better positioned than an appellate court to judge the pragmatism of the case and made all significant decisions in the exercise of reasonable professional judgment. See .

Likewise, on our cold record, we cannot foreclose the possibility that appellant‘s counsel had tactical reasons for failing to challenge the venire person at issue for cause or use a peremptory strike. For example, counsel may have believed the venire person, despite her expressed views, was preferable to others who were subsequent in the panel order or those against whom counsel used peremptory strikes. Without an explanation for counsel‘s actions, we will not second guess his decision or conclude his conduct was “so outrageous that no competent attorney would have engaged in it.” See ; (mem. op., not designated for publication) (relying on Delrio and recognizing, on cold record, counsel may have had strategy for failing to further question and strike nine panel members who indicated they could not completely afford defendant the presumption of innocence and one panel member who indicated he believed defendant was guilty, such as preferring those panel members to others); see also (citing Delrio when holding Morales counsel was not ineffective for failing to exercise peremptory challenge, after challenge for cause denied, against panel member who was district attorney in office prosecuting defendant although she may have been impliedly biased; there was some evidence counsel made a tactical, albeit difficult, decision because he preferred this panel member serve on jury than those against whom he exercised peremptory strikes).

In summary, having rejected all of appellant‘s ineffective-assistance contentions, we overrule his fourth through seventh issues.

We affirm the trial court‘s judgment.

Donald E. Spencer, Richmond, TX, pro se.

Brian W. Zimmerman, Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices JENNINGS and KEYES.

OPINION

SHERRY RADACK, Chief Justice.

Appellant, Donald E. Spencer, attempts to appeal from the trial court‘s order granting the motion to dismiss filed by appellees, Joe Pagliarulo and CC Media Holdings, Inc., pursuant to section 27.003 of the Texas Civil Practice and Remedies Code. We dismiss the appeal.

An appeal from an “order on a motion to dismiss a legal action under Section 27.003” of the Texas Civil Practice and Remedies Code is an accelerated appeal. TEX. CIV. PRAC. & REM.CODE ANN. § 27.008(b) (West Supp.2014) (requiring appellate court to expedite appeal from order on motion filed pursuant to section 27.003); TEX.R.APP. P. 28.1(a) (defining accelerated appeal to include appeals required by statute to be expedited). In an accelerated appeal, absent a motion to extend time under Texas Rule of Appellate Procedure 26.3, “the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions....” ; see TEX.R.APP. P. 26.1(b). If a motion for extension of time to file the notice of appeal is timely filed, the deadline for filing a notice of appeal is extended by fifteen days, to thirty-five days after the judgment is signed. See TEX.R.APP. P. 26.3; . Filing a motion for new trial does not extend the appellate deadlines in an accelerated appeal. See TEX.R.APP. P. 28.1(b); ; .

Because the trial court granted the appellees’ section 27.003 motion to dismiss on March 3, 2014 and issued its final judgment on March 25, 2014, Spencer‘s notice of appeal was due by April 14, 2014. Spencer, proceeding pro se, filed his notice of appeal on May 2, 2014, which was thirty-eight days after the final judgment was rendered. Hence, Spencer‘s notice of appeal was untimely. See TEX.R.APP. P. 26.1(b), 26.3; .

On September 2, 2014, we notified Spencer that his appeal was subject to dismissal for want of jurisdiction unless he filed a written response showing how this Court has jurisdiction over this appeal. See TEX.R.APP. P. 42.3(a) (allowing involuntary dismissal of case after notice). Although Spencer did not respond to our September 2, 2014 notice, he had previously filed a response to a notice issued by the Clerk on August 20, 2014, in which he contended that he had sixty days to appeal the trial court‘s ruling under Texas Civil Practice and Remedies Code section 27.008. This argument appears to rely on former section 27.008(c), which was repealed effective June 14, 2013 and is therefore inapplicable to this case. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.008(c), 2011 Tex. Gen. Laws 961, 963, repealed by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 5, 2013 Tex. Sess. Law Serv. 2501, 2502 (West).

Because Spencer‘s notice of appeal was not filed within twenty days of the trial court‘s final judgment or within the fifteen-day extension period, Spencer‘s response fails to demonstrate either that his notice of appeal was timely or that we have jurisdiction over this appeal. See TEX. R.APP. P. 2 (prohibiting appellate court from construing Rule 2 to “alter the time for perfecting an appeal in a civil case“), 26.3 (authorizing extension of time if motion for extension is filed within fifteen days of deadline); .

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX.R.APP. P. 42.3(a), 43.2(f); see (holding that untimely notice of appeal failed to invoke jurisdiction of appellate court); (dismissing appeal for want of jurisdiction when notice of appeal was untimely).

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