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CASE NOS. PD-1976-14, PD-1677-14 & PD-1678-14

IN RE § IN THE

RORY JONES, § COURT OF

TDCJ-CID#01914710 § CRIMINAL APPEALS

PETITIONER JONES MOTION FOR RECONSIDERATION OF

DISMISSAL OF PDR'S AS BEING UNTIMELY

ORIGINAL

COUFTT OF CRIMINAL APPEALS

MAR 18 2015

Abel Acosta, Clerk

TO THE HONORABLE JUDGES OF T6HE COURT OF CRIMINAL APPEALS:

Comes now, your Petitioner, Rory Jones, proceeding in pro se in the above-styled and numbered

causes and files this, his Motion for Reconsideration of his PDR's being Dismissed as being untimely

FILED IN

filed and in support thereof, would show the Court as follows: COURT OF CRIMINAL APPEALS

L MAR 20 2015

Abel Acosta, Clerk

Procedural History

Petitioner was convicted of the felony offenses of aggravated robbery, aggravated assault and

aggravated kidnapping in the 211th Judicial District Court of Denton County in the State ofTexas v. Rory

Jones in case numbers: F-2014-0079-C, F-2014-0080-C and F-2014-0081-C on February 07, 2014. A

direct appeal was taken by Petitioner to the Second Court of Appeals in Jones v. State, Case Nos. 02-14-

00068-CR, 02-14-00069-CR & 02-14-00070-CR, who affirmed the judgment and sentences in an

unpublished opinion dated November 20, 2014. On December 31, 2014, the Court granted Petitioner's

Motion for Extension of Time to file his pro se PDR, giving him up to and including February 20, 2015,

in which to file his pro se PDR in all three cases. Petitioner placed all three of his PDR's in the prison

mail box for the authorities to forward to the Court on February 19, 2015, as demonstrated by the

associated dates written above his signature and certificates of service of his PDR. On March 04, the

Clerk of the Court issued a notice to Petitionerthat his three PDR's had been dismissed as being untimely

filed. This proceeding followed. See Appendix A.
H.

Motion for Reconsideration

Petitioner relies upon two procedural rulesof lawadopted by the Texas Supreme Courtto remedy

the alleged deficient filing. First, Petitioner would direct the attention of the Courtto the Texas Rules of

Appellate Procedure, Rule 4, infra:

A. Rule 4. Time and Notice Provisions

4.1. Computing Time

(a) In General. The day of an act, event, or defaultafterwhich a designated period beginsto run is not

included when computing a period prescribed or allowedby these rules, by court order,or by statute.

The last day of theperiod isincluded, butifthatday isa Saturday, Sunday, orlegal holiday, the period

extends to the end ofthe next day that is not a Saturday, Sunday, or legal holiday.

9.2. Filing

(b) Filing by Mail.

(1)Timely Filing. A document received within ten days afterthe filing deadline is considered

timely filed if:

(A) it was sent to the properclerk by UnitedStatesPostal Service or a commercial

delivery service;

(B) itwas placed in an envelope or wrapper properly addressed and stamped; and
(C) it was deposited in the mail or delivered to a commercialdelivery service on or before the last day for

filing.

Petitioner submits that he signed his three PDR's on February 19, 2015 and placed them in the

prison mail for them to forward to the Courts Clerk for filing. For reasons unknown to Petitioner the

package mailed was not post-marked before the last day of filing, which would have been February 20,

2015. Thereafter, the clerk of the Court dismissed all three PDR's as being untimely on March 04, 2015.

Once an inmate places his pleading(s) in the prison mail box for forwarding to the clerk of a court for

filing he has no control on howhis pleadings are actually handled and/orforwarded forfiling.

B. Federal Mail box Rule Extended to State Filings

In Campbell v. State, PD-1081-09, this Court held in relevant part:

We granted appellant's sole ground for review, which he filed pro se: "The court of appeals

erred in holdingthat the mailboxrule filing and received by clerk after deposited within ten

days applied to indigent criminal defendants acting pro se." An amended briefhas been filed

by "Counsel for Appellant." In that brief, appellant asserts that the court of appeals "erred in

holding that the ten-day late-filing requirement, incorporated into TEX.R. CIV. P. 5 and

TEX.R.APP. P. 9.2, applies to an indigent, incarcerated litigant acting pro se." He asks,

"Should pro se, incarcerated litigants be exempted from enforcement of the ten-day filing

provisoembedded withinTEX.R. CIV. P. 5 and TEX.R.APP. P. 9.2(b)(1)?"

In Texas, the mailbox rule is encompassed by TEX.R.APP. P. 9.2(b) and TEX.R. CIV. P. 5.

Rule 9.2(b) provides that, if filed by mail, a document received within ten days after the

filing deadline is considered timely filed if: 1) it was sent to the proper clerk by United

States Postal Service first-class, express, registered, or certified mail; 2) it was placed in an

envelope or wrapper properly addressed and stamped; and 3) it was deposited in the mail on

or before the lastday forfiling. Rule 5 alsoprovides that additional time to file is permitted,

including specific provisions that if any properly addressed and stamped document in an

envelope or wrapper sentto the proper clerk by first-class United States mail and deposited

in the mail on or before the last day for filing, and received by the clerk not more than ten

days afterthe lastdayforfiling, shall be filed bythe clerk and be deemed filed intime.

The Supreme Court also pointed out that, "[u]nlike other litigants, pro se prisoners cannot

personally travel to the courthouse to see that the notice isstamped Tiled' or to establish the

date on which the court received the notice." Houston v. Lack, 487 U.S. at 271, 108 S.Ct.

2379. The Court also noted that pro se prisoners are forced to entrust their appeals to the

vagaries ofthe mail, while other litigants who use that method can "place the notice directly

into the hands of the United States Postal Service (or a private express carrier); and they can
follow its progress by calling the court to determine whether the notice has been received

and stamped, knowing that if the mail goes awry they can personally deliver notice at the last

moment or that their monitoring will provide them with evidence to demonstrate either

excusable neglect or that the notice was not stamped on the day the court received it." Id. It

also notesthat "[p]rose prisoners cannottake any of these precautions; nor, by definition, do

they have lawyers who can take these precautions for them."

The SupremeCourt recognizesthat "[w]orse,the pro se prisoner has no choice but to entrust

the forwarding of his notice of appeal to prison authorities whom he cannot control or

supervise and who may have every incentive to delay." Id. "No matter how far in advance

the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it

will ultimately get stamped Tiled' on time." Id. (Emphasis in original.) "And if there is a

delay the prisoner suspects is attributable to the prisonauthorities, he is unlikelyto have any

means of proving it, for his confinement prevents him from monitoring the process

sufficiently to distinguish delay on the part of prison authorities from slow mail service or

the court clerk'sfailure to stamp the notice on the date received." Id. It also recognizes that

"[ujnskilled in law, unaided by counsel, and unable to leave the prison, [thepro se prisoner's]

control over the processing of his notice necessarily ceases as soonas he hands it over to the

only public officials to whom he has access — the prison authorities — and the only

information he will likely have is the date he delivered the notice to those prison authorities

and the date ultimatelystampedon his notice." Id. at 271-72, 108 S.Ct. 2379.

Like our sister courts, we declineto penalize a pro se inmate who timelydeliversa document

to the prison mailbox. We find the analysis of the United States Supreme Court in Houston

v. Lack to be compelling. We see no reason for this Court to hold contrarily to both the

United States and Texas Supreme Courts. Therefore, we shall apply those considerations to

an analogous situation, such as the present case.

We hold that the pleadings of pro se inmates shall be deemed filed at the time they are

delivered to prison authorities for forwarding to the courtclerk. Accordingly, we reverse the

judgment of the court of appeals and remand this cause to that court for further proceedings

consistent with this opinion. Id.

Campbell v. State, 320 SW3d 338.

Like the litigant in Campbell, Petitioner has had to rely on prison authorities receiving his

pleadings after they are placed into the prison mailbox toforward in atimely manner his pleadings to

this Court for its consideration.
CONCLUSION

Accordingly, Petitioner would respectfullyrequest that this Honorable Court extend the mail

box rule to his previous filing of his three PDR's, which, as demonstrated in the certificate of service

of those pleadings, show he signed and placed his three PDR petitions in the prison mail box on

February 19, 2015, the day before the deadline for same to be filed;

CERTIFICATE OF SERVICE

I, Rory K.Jones, TDCJ-CID#01914710, Petitioner, pro se, hereincertifies that a true and

correct copy of the above and foregoing Petition for Discretionary Review was sent to the

Denton County District Attorney, and The State Prosecuting Attorney, by placing same, in the

prison mail box, first-class, postagepaid, on this the 19 day of February, 2015.

SIGNED onthis the 13th day ofMarch 2015.

Respectfully submitted,

Huntsville, Texas 77349
CERTIFICATE OF SERVICE

I, Rory K. Jones, TDCJ-CID#01914710, Petitioner, pro se, herein certifies that a true and

correct copy of the above and foregoing Motion for Reconsideration was sent to the Denton

County District Attorney, and The State Prosecuting Attorney, by placing same, in the prison

mail box, first-class, postage paid, onthis the 13th day ofMarch, 2015..
APPENDIX

A
FIT F COPY OFFICIAL NOTICEFROMCOURTOF CRIMINAL APPEALS OF TEXAS rll"E'

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

3/4/2015 COA No. 02-14-00068-CR

JONES, RORY Tr. Ct. No! F-2014-0079-C PD-1676-14

On this day, the Appellant's Pro Se petition for discretionary review has been

dismissed as untimely filed. ~_fi- .};':

Abel Acosta, Clerk

RORY JONES

TDC# 1914710

WYNNE UNIT

810 FM 2821

HUNTSVILLE, TX 77349
FII F COPY OFFICIAL NOTICEFROMCOURTOF CRIMINALAPPEALSOF TEXAS rUjE wv^x

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 78711

3/4/2015 COA No. 02-14-00069-CR

JONES, RORY Tr. Ct. No. F-2014-0080-C PD-1677-14

On this day, the Appellant's Pro Se petition for discretionary review has been

dismissed as untimely filed.

Abel Acosta, Clerk

RORY JONES

TDC# 1914710

WYNNE UNIT

810 FM 2821

HUNTSVILLE, TX 77349
Fir p copy OFFICIAL NOTICE FROMCOURTOF CRIMINALAPPEALS OF TEXAS rlLvC WAJI

P.O. BOX 12308, CAPITOL STATION, AUSTIN, TEXAS 787II

3/4/2015 COA No. 02-14-00070-CR

JONES, RORY Tr. Gt. No! F-2014-0081-C PD-1678-14

On this day, the Appellant's Pro Se petition for discretionary review has been

dismissed as untimely filed. ..f:^ ~x;::"

's Abel Acosta, Clerk

RORY JONES

TDC# 1914710

WYNNE UNIT

810 FM 2821

HUNTSVILLE, TX 77349