Mark Anthony Espinoza v. State

Mark Anthony Espinoza v. State

IN THE

TENTH COURT OF APPEALS

No. 10-03-233-CR

No. 10-03-235-CR

     MARK ANTHONY ESPINOZA,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the Criminal District Court 5

Dallas County, Texas

Trial Court Nos. F01-48365-VL & F03-71532-VL

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Mark Anthony Espinoza appealed his convictions in these causes. The court pronounced sentence in each case on May 15, 2003. Espinoza did not file motions for new trial. Accordingly, the clerk’s record in each case was due on July 14, 2003. See Tex. R. App. P. 35.2(a). In the meantime, Espinoza’s appeals were transferred from the Dallas Court of Appeals to this Court.

      The district clerk advised the Clerk of this Court by letter dated August 12, 2003 that the clerk’s record in each appeal had not been filed because Espinoza had failed to pay the clerk’s fee for preparation of the record. Accordingly, the Clerk of this Court sent the following notice to Espinoza in each case on August 21, 2003:

The clerk’s record in the above cause has apparently not been filed because appellant has failed to pay or make arrangements to pay the clerk’s fee for preparation of the record. If appellant desires to proceed with this appeal, he must pay or make arrangements to pay the clerk’s fee and notify this Court of the actions taken within ten days after the date of this letter. If appellant fails to do so, this appeal will be dismissed for want of prosecution.

To date, the Court has received no response to this notice.

      Rule of Appellate Procedure 37.3(b) provides that if an appellant fails to pay or make arrangements to pay the clerk’s fee for preparation of the record, the Court may:

dismiss the appeal for want of prosecution, unless the appellant was entitled to proceed without payments of costs. The court must give the appellant a reasonable opportunity to cure before dismissal.

Tex. R. App. P. 37.3(b).

      The Court has received no information to suggest that Espinoza is indigent. He has not made the necessary arrangements for the filing of the clerk’s records despite being given the opportunity to do so. Id. Accordingly, we dismiss these appeals for want of prosecution.

                                                                         PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Judge Allen (Sitting by Assignment)

Appeals dismissed

Opinion delivered and filed December 10, 2003

Do not publish

[CR25]

e Legislature expects litigants to comply with Section 263.405(b) of the Family Code.Ô  Id. at 815 n.2 (quoting House Comm. on Juvenile Justice & Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005)).  In light of this statement of purpose and the plain language of section 263.405(i), it is my view that the common-law doctrine of fundamental error does not apply in cases governed by section 263.405.

            Moncrief also contended in her response that any insistence on compliance with section 263.405(b) under the unique circumstances of her case operates to deprive her of due process.  However, she did not raise this issue in her brief.  It is well-settled that this Court cannot address an issue in a civil appeal which has not been raised as an issue or point of error in the appealing party’s brief.  See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam); French v. Gill, 206 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.); Dawson v. Briggs, 107 S.W.3d 739, 744 (Tex. App.—Fort Worth 2003, no pet.); but see Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (“appellate courts are free to review ‘unassigned error’” in criminal appeals).  Accordingly, absent properly assigned error, this Court cannot address the question of whether section 263.405(i) violates Moncrief’s right to due process.

            Raising the issue of due process in a response is not the same as briefing the issue.  Prudent appellate counsel should always address preservation with respect to any issue presented for appellate review, even if this is done in a single sentence with an appropriate citation to the record (e.g., “This issue was preserved by appellant’s timely filed statement of points.  II C.R. at 100.”).  See Walder v. State, 85 S.W.3d 824, 827 (Tex. App.—Waco 2002, order) (per curiam) (in argument portion of brief, “counsel should explain how the issue or point presented has been preserved for appellate review  .  .  .  ‘with appropriate citations to authorities and to the record’”).  Or, as this Court said in Walder, “counsel should explain  .  .  .  why no preservation is required.”  Id.

            Here, Moncrief failed to preserve her complaint because she did not file a statement of points.  Under these circumstances, her appellate counsel should have acknowledged this failure (particularly in view of the notice sent by the Clerk of this Court which expressly referenced this failure) and briefed the issue of why Moncrief should be excused from compliance with section 263.405.  Such briefing would ostensibly present argument and authorities to support the due process complaint on which the dissent relies.  Presenting this issue in the appellant’s brief would also presumably lead the Department to respond in the appellee’s brief with argument and authorities to demonstrate why there is no due process violation.  The issue would be fully joined, and it would then be appropriate for this Court to evaluate the merits of such a complaint.  However, Moncrief did not brief this issue.  Therefore, I believe that this Court should not address any potential violation of her right to due process.  See Pat Baker Co., 971 S.W.2d at 450; French, 206 S.W.3d at 743; Dawson, 107 S.W.3d at 744.

Because Moncrief failed to properly preserve her complaint, I concur in the judgment of affirmance.

 

 

FELIPE REYNA

Justice

 

Concurring opinion delivered and filed August 15, 2007