Opinion issued June 17, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-01080-CR

NO. 01-09-01102-CR

NO. 01-09-01103-CR

NO. 01-09-01104-CR

NO. 01-09-01105-CR

NO. 01-09-01106-CR

NO. 01-09-01107-CR

NO. 01-09-01108-CR

NO. 01-09-01109-CR

NO. 01-09-01110-CR

NO. 01-09-01111-CR

NO. 01-09-01112-CR

NO. 01-09-01113-CR

NO. 01-09-01114-CR

NO. 01-09-01115-CR

NO. 01-09-01116-CR

NO. 01-09-01117-CR

NO. 01-09-01118-CR

NO. 01-09-01119-CR

NO. 01-09-01120-CR

NO. 01-09-01121-CR

NO. 01-09-01122-CR

NO. 01-09-01123-CR

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Marcus Demon Lair, Appellant

V.

The State of Texas, Appellee

On Appeal from the 278th District Court

Grimes County, Texas

CONCURRING OPINION

          I concur in the judgments, but write separately to encourage the adoption of the holding of Verburgt[1] to late-filed notices of appeal in criminal cases.

          I recognize that, under the holding of Olivo,[2] we are compelled to dismiss the attempted appeals in this case for want of jurisdiction.  But the decision in Olivo preceded the Texas Supreme Court’s decision in Verburgt by a year, and the Olivo court cited to appellate decisions in civil cases that have since been effectively overruled by Verburgt.  See Olivo, 918 S.W.2d at 524.  Since the supreme court’s decision in Verburgt, the Texas Court of Criminal Appeals has neither adopted nor declined to adopt the holding of Verburgt.  Nor has it addressed the change in civil appellate jurisprudence as a result of Verburgt or the disparate treatment of criminal and civil appellants resulting from the inconsistent holdings of Olivo and Verburgt. 

I recognize that a criminal appellant may file—and would prevail on—a petition for writ of habeas corpus requesting an out-of-time appeal because his counsel failed to file both a notice of appeal and a motion for extension of time within fifteen days of the deadline for filing the notice of appeal.  But such remedy is cumbersome, costly, inefficient, and elevates form over substance only to return the criminal appellant to the same position now enjoyed by civil appellants without such collateral proceedings.  I see no reason why potential civil and criminal appellants, identically situated, should be treated differently.

In the twelve years that have passed since the two highest courts of our state took divergent paths on this question, the Court of Criminal Appeals has “functionally embraced an approach to perfecting appeals and notice of appeal closer to that of the Texas Supreme Court” which declines “to elevate form over substance.” See Few v. State, 230 S.W.3d 184, 189 (Tex. Crim. App. 2007) (internal citations and quotations omitted).  It has also stated that “a person’s right to appeal a civil or criminal judgment should not depend upon tracking through a trail of technicalities.”  Id. at 190.  Adopting the holding of Verburgt would further this purpose and also provide for more uniform justice for those who seek relief from the appellate courts of our state.  Criminal appellants should not find the door to the appellate courts closed to them while civil appellants in an identical procedural posture are permitted to enter and to have their case heard.  But before an appellant may enter, he must knock.  Appellants must petition the Court of Criminal Appeals to consider this issue.  I urge appellants to provide the Court of Criminal Appeals an opportunity to adopt the holding of Verburgt and to bring procedural consistency to our civil and criminal appellate jurisprudence.

                                                                    Jim Sharp

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.

Publish.  Tex. R. App. P. 47.2(b).