IN THE
TENTH COURT OF APPEALS
No. 10-07-00110-CV
In the Interest of K.A.J. and Z. J., Children
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. D200500214
MEMORANDUM Opinion
Appellant filed a notice of appeal to the agreed termination of the parental rights of B.J. (biological father to K.A.J.) and A.J. (biological mother to K.A.J.). Appellant is the mother of B.J. Appellant was not a party to the termination proceeding. Appellees filed motions to dismiss. In all, three such motions were filed. One Appellee also filed a motion for damages.
For several reasons mentioned below, this appeal is dismissed. In the alternative, the trial court’s judgment is affirmed.
The Clerk of this Court notified Appellant by letter dated April 25, 2007 of various defects regarding her appeal. The first defect noted was that her appeal was subject to dismissal for want of jurisdiction because Appellant’s notice of appeal was untimely. See Tex. R. App. P. 26.1(b), 42.3(a), 44.3; Tex. Fam Code Ann. § 109.002(a) (Vernon 2002). The Clerk further explained that a motion for extension of time to file the notice of appeal is implied if Appellant files a notice of appeal within 15 days of the date the notice is due; but Appellant must still supply a reasonable explanation for the late filing of the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The Clerk warned Appellant that the Court may dismiss the appeal unless, within 21 days of the date of the letter, a response is filed showing grounds for continuing the appeal.
More than 21 days have passed and, although Appellant filed a motion for extension of time to file a notice of appeal, Appellant did not provide the Court with a reasonable explanation for the untimely filing of the notice of appeal. Appellant explains what happened between the judgment and filing the notice of appeal. But simply explaining what was going on is not a reasonable explanation of why the notice of appeal was not timely filed. For this reason, we have no jurisdiction and dismiss the appeal.
The second defect noted by the Clerk was that her appeal was also subject to dismissal for want of jurisdiction because Appellant may not have standing to bring the appeal. The Clerk noted that according to the docketing statement, an agreed order of termination was signed on March 13, 2007, and Appellant filed a motion for intervention on March 21, 2007. These facts indicated to the Clerk that Appellant may not be a party to the appeal. The Clerk warned Appellant that the Court may dismiss the appeal unless, within 21 days of the date of the letter, a response is filed showing grounds for continuing the appeal. See Tex. R. App. P. 42.3(a), 44.3.
Appellees raised the issue of standing as well in their motions to dismiss. In the motions, Appellees argue that section 153.434 of the Texas Family Code bars Appellant from the relief she sought in the trial court – grandparent access and possession. Section 153.434 provides that a biological or adoptive grandparent may not request possession of or access to a grandchild if (1) each of the biological parents of the grandchild has had the person's parental rights terminated, or executed an affidavit of waiver of interest in the child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child; and (2) the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent. Tex. Fam. Code Ann. §153.434 (Vernon Supp. 2006). Appellees assert that each of these statutory conditions was met and recited in the Agreed Order of Termination signed by the trial court on March 13, 2007. Appellees are correct.
Appellant has not responded to either the Clerk’s jurisdictional inquiry regarding standing or the Appellees’ motions to dismiss. We have determined that Appellant does not have standing to pursue her appeal. Therefore, Appellees’ motions are granted, and for this reason, the appeal is also dismissed.
Further, because Appellant failed to timely respond to our jurisdictional inquiry regarding standing to pursue this appeal, we dismiss this appeal.
Finally, the third defect noted by the Clerk was that there was no indication that Appellant filed a statement of points as required by the Texas Family Code. See Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2006). Appellant did not respond to the Clerk’s inquiry. Because Appellant failed to provide an explanation as to how the Court could consider any issue not raised by a statement of points, we dismiss the appeal for this reason as well.
In the alternative, the trial court’s judgment is affirmed. The clerk’s record was filed on May 1, 2007. No statement of points has been included in the record presented on appeal. The Clerk warned Appellant in the April 25 letter that we would affirm the trial court’s judgment unless, within 21 days from the date of the letter, Appellant filed a response showing grounds for this Court to consider any issue that was not raised in a statement of points. More than 21 days have passed and Appellant has not responded to the Clerk’s inquiry. Under the express terms of the statute, we cannot consider any potential issue Appellant might bring. See Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006); In re E.A.R., 201 S.W.3d 813, 814 (Tex. App.—Waco 2006, no pet.). Therefore, if, we are wrong in dismissing the appeal for the reasons stated above, we affirm the trial court’s judgment.
Appellee’s motion for damages is denied. Any other relief requested in the various pending motions is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Justice Vance concurs in the judgment of dismissal with a note)*
Appeal dismissed; or alternatively, affirmed
Opinion delivered and filed June 13, 2007
[CV06]
* “(I join the opinion only to the extent of the first stated reason for dismissal, i.e. failure to file a timely notice of appeal and explain why it was not timely.)”
ehicle encompasses two conduct elements. The offense not only requires "forbidden conduct," but also knowledge of the "attendant circumstances" of the offense. The "forbidden conduct" is the knowing operation of the vehicle. In order to have knowledge of the "attendant circumstances", the defendant must be aware that the operation of the vehicle is without the owner's consent. As a result, we must review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found, beyond a reasonable doubt, that Childers knew he did not have the effective consent of the owner to operate the vehicle.
Russell Giles, a used car dealer in Waco, testified that she purchased a Pontiac Grand Prix on September 9, 1992. Giles sent the vehicle to a nearby detail shop but had to tow the car back to her lot that afternoon because the keys "turned up missing" while the vehicle was being cleaned. According to Giles, the car was left locked inside the fenced car lot that evening. The next morning, after receiving a call from the Waco Police Department, she went to check on her car lot. She found that the fence had been cut from top to bottom with wire cutters and the Grand Prix was gone. When the vehicle was returned to her by the police, it had a set of keys in it, but Giles could not remember whether they worked in the Grand Prix. According to Giles, the turn signal switch was torn off the steering column. Giles testified that she did not give Childers or anyone else permission to drive the Grand Prix on either September 9 or 10. Finally, she testified that she had seen Childers "hang out" at detail shops, including the one across the street from her office.
Officer Gilberto Limon, a Waco police officer, testified that in the early morning hours of September 10 he saw a vehicle with an expired vehicle registration sticker being driven by a man who was not wearing a seat belt. He activated his overhead lights and stopped the vehicle. According to Limon, as he got out of his patrol car, both the driver, whom he identified as Childers, and the passenger got out of the Pontiac Grand Prix and started to approach him. Childers was talking loudly to the officer. Limon testified that he saw a glove on Childers' right hand, which was holding a white piece of paper. After two other officers arrived, Limon asked Childers what he was holding in his hand. Childers then "bolted and ran." The officers caught Childers after chasing him for a block-and-a-half down an alleyway. According to Limon, when he asked Childers whether he owned the car, Childers responded that he had purchased it the day before, and that he had the title to the vehicle, but it was not with him. Limon also testified that Childers initially gave him a fictitious name. Furthermore, Childers claimed that he did not know the identify of his passenger, who had disappeared by the time they returned to the scene. Limon found two screw drivers in the vehicle. Also, the steering column was "partially busted, as if somebody was tampering with" it. Additionally, the keys in the ignition switch did not work on the vehicle. On cross-examination Limon testified that the car was probably started with the two screw drivers and the keys in the ignition switch were there to avoid suspicion in case a police officer came.
Stephen January, an officer with the Waco Police Department, testified that he assisted Limon in Childers' arrest. According to January, Childers was holding something that looked like a white cloth in his hand. Although January could not tell whether Childers had something wrapped in the cloth, he could have possibly concealed a pair of wire cutters in it. January also testified that the keys in the ignition switch did not operate the vehicle.
Unlike the facts of the case in Herbert v. State, the attendant circumstances surrounding Childers' operation of the vehicle, as well as his claimed ownership of the vehicle and his attempt to conceal his true identity, were such that any rational trier of fact could have found beyond a reasonable doubt that Childers knew he did not have the effective consent of the owner to operate the vehicle. Accordingly, we overrule point of error one.
In point two Childers contends that the trial court committed fundamental error in failing to instruct the jury on mistake of fact. According to Childers, his trial counsel's strategy was directed at raising the mistake-of-fact defense. Childers' called Carl Daniel to testify that on September 10 he saw a man "turn over the vehicle" to Childers at the Parkside apartments. The man wanted Childers to rent the Grand Prix, and Daniel saw Childers drive off in the vehicle. On cross-examination Daniel testified that he would not rent a car from someone he had never seen before. He also acknowledged that there are a number of stolen cars around the Parkside apartments and that "they get rented out a lot." Because it is not uncommon for a person who lives at Parkside to rent a car from someone else who lives there, Daniel did not think anything unusual about Childers renting such a car.
Clifton Rivers, a resident of the Parkside apartments, testified that he saw Childers rent the Pontiac Grand Prix for twenty dollars and drive off. According to Rivers, the vehicle's engine was already running when Childers got in. When asked on cross-examination whether one "can rent stolen cars pretty easy in that area," Rivers responded, "They come by all the time."
Finally, Childers called Ruby Diles, also a resident of Parkside, to testify that it is a common practice to rent cars from other people at Parkside. On cross-examination, Diles testified that she had no idea whether "a lot of those cars that are rented out there are stolen."
Defense counsel expressly stated that he had no objection to the court's charge to the jury. On appeal, however, Childers argues that the trial court's error in failing to instruct the jury on mistake of fact was so egregious and created such harm that it denied him the right to a fair and impartial trial. A mistake of fact instruction may be proper in an unauthorized use of a motor vehicle case when it relates to the "attendant circumstances" of the crime. Specifically, such an instruction is deemed proper when the defendant alleges that he has been given permission to operate the vehicle by a third party he believes to be the owner. In Gardner, the appellant testified that he borrowed the stolen vehicle from a friend and that he believed the friend was the true owner of the vehicle. Furthermore, the arresting officer in Gardner testified that, when questioned about the vehicle, the appellant claimed to have borrowed it from a friend. In this case, however, Childers did not testify or offer any other evidence that he believed the vehicle belonged to the person from whom he obtained the vehicle. More importantly, the arresting officer testified that Childers claimed to be the titled owner of the vehicle, a claim not supported by the three defense witnesses. Finally, we note that the testimony of the witnesses called on Childers' behalf failed to raise any evidence that he formed a reasonable belief that the man from whom he rented the vehicle was the true owner. Two of the witnesses acknowledged that it was common practice in that area to rent stolen vehicles, and the third said that she had no idea whether such cars were stolen. We hold that, because the defense of mistake of fact was not raised by the evidence, the trial court did not err in refusing to instruct the jury on it. However, even if the charge was erroneous, the error was not so egregious nor did it create such harm that Childers did not have a fair and impartial trial. Both parties' closing arguments were consistent with the proposition that the State had to prove that Childers knew he did not have the effective consent of the owner to operate the vehicle in order to obtain a conviction. Accordingly, we overrule point of error two.
We affirm the judgment.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed June 8, 1994
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