In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00084-CR
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ROBERT LEROY CLARK, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Fifth Judicial District Court
Cass County, Texas
Trial Court No. 2004F00272
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
O P I N I O N
Robert Leroy Clark attempts to appeal his conviction by a jury for the offense of aggravated assault causing serious bodily injury by use of a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(1) (Vernon Supp. 2008). Clark's sentence was imposed March 5, 2009. His notice of appeal was dated April 14, 2009, and filed April 16, 2009. We received the clerk's record May 8, 2009. The issue before us is whether Clark timely filed his notice of appeal. We conclude that he did not and dismiss the attempted appeal for want of jurisdiction.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) of the Texas Rules of Appellate Procedure prescribes the time period in which a notice of appeal must be filed by a defendant in order to perfect an appeal in a criminal case. A defendant's notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended in open court, or within ninety days after sentencing if the defendant timely files a motion for new trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. The record does not contain any motion for new trial. The last date Clark could timely file his notice of appeal was April 6, 2009, thirty days after the day the sentence was imposed in open court. See Tex. R. App. P. 4.1, 26.2(a)(1). Further, no motion for extension of time was filed in this Court within fifteen days of the last day allowed for filing the notice of appeal.
In reviewing the record, we also noted that Clark filed a post-conviction application for a court-appointed attorney. (1) This Court held in Massey v. State, 759 S.W.2d 18 (Tex. App.--Texarkana 1988, no pet.), that a request for appointment of counsel was sufficient to confer jurisdiction. Massey is distinguishable, however, because Massey had also requested within that motion a copy of the record, and that record contained the district clerk's written acknowledgment that Massey orally gave notice of appeal. In the case now before us, Clark's application for court-appointed attorney indicates no desire to appeal. An affidavit of indigence and request for appointment of appellate counsel alone cannot serve as the notice of appeal or as a motion for extension of time. Jarrels v. State, No. 01-01-00721-CR, 2001 WL 1301636 (Tex. App.--Houston [1st Dist.] Oct. 25, 2001, no pet.) (mem. op., not designated for publication); Rivera v. State, 940 S.W.2d 148 (Tex. App.--San Antonio 1996, no pet.).
Clark has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction. (2)
Bailey C. Moseley
Justice
Date Submitted: May 14, 2009
Date Decided: May 15, 2009
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1. Clark was not found indigent by the trial court, and his application was denied.
2. Clark may be entitled to an out-of-time appeal by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008).
be affirmed. (1) Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Simmons, 55 S.W.3d at 681. This is because the summary judgment may have been based on a ground that was available to the trial court and not specifically challenged by the appellant on appeal. Malooly Bros., Inc., 461 S.W.2d at 121; Simmons, 55 S.W.3d at 681.
Arguably, the above rule should not apply under the present circumstances because Strather amended his petition to remove the defect about which Dolgencorp complained in its summary judgment motion before the trial court ruled on the motion. It is not uncommon, however, for a party, in order to avoid summary judgment, to amend his or her pleadings in response to a motion for summary judgment.
Were we to remove Strather's burden of attacking each of the possible grounds for granting summary judgment by simply referencing his amended pleadings and assuming the trial court could not have granted summary judgment in light of those amended pleadings, we would effectively be placing ourselves in the role of the trial court in ruling on the motion for summary judgment. We would be assuming the trial court did not rule-either correctly or incorrectly-on the motion it had before it. We decline to set such a precedent, especially because the burden of attacking each possible ground alleged in the summary judgment motion is relatively light.
In the present case, however, the trial court arguably did state its reasons for granting summary judgment in the letter it sent to the parties. But these statements were not contained in the order granting summary judgment and are in the nature of findings of fact and conclusions of law, which we are precluded from considering. See Simmons, 55 S.W.3d at 680; Williams v. Moores, 5 S.W.3d 334, 336 (Tex. App.-Texarkana 1999, pet. denied). Rather, we must look only to the order granting summary judgment, in which the trial court did not provide the reasons for its ruling. Simmons, 55 S.W.3d at 680; see also Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d 665, 669 (Tex. App.-Texarkana 1996, writ denied) (court of appeals could not consider trial court's letter stating its reasons for granting summary judgment because letter was not part of judgment).
Dolgencorp raised the statute of limitations as a basis for granting summary judgment. Because Strather does not attack Dolgencorp's statute of limitations defense, either through a general or specific point of error or issue on appeal, we must affirm the summary judgment.
The same reasoning applies to Strather's second issue on appeal, in which he contends the trial court erred in granting summary judgment with respect to three of his theories of liability, because Dolgencorp's summary judgment proof does not address those theories. In his petition, Strather alleged that Dolgencorp failed to properly train its employees, servants, and agents in the appropriate procedures to follow in loading trailers; that Dolgencorp failed to reasonably supervise the loading of the trailer; and that Dolgencorp failed to reasonably inspect the loading of the trailer. He contends Hughes' affidavit, which states that no employee of Dolgencorp was involved in the loading or preparation of the trailer, does not provide summary judgment proof to negate these theories.
Even if Strather is correct, he fails to attack Dolgencorp's statute of limitations defense, which entitles it to summary judgment notwithstanding these theories of liability. Therefore, we must affirm the summary judgment.
We affirm the judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 16, 2002
Date Decided: September 11, 2002
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1. A general point of error or issue on appeal allows a court of appeals to review all possible grounds on which summary judgment may have been granted. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). A general point or issue states, "The trial court erred in granting the motion for summary judgment," or uses similar language. Id.