Raffaele M. Pandozy v. Mary Ann Beaty ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-08-00023-CV ______________________________



RAFFAELE M. PANDOZY, Appellant

V.

MARY ANN BEATY, Appellee

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On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court No. DC-03-05712-E

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

   Raffaele M. Pandozy has filed an appeal that states it is from the issuance of five different orders in connection with his lawsuit against his former wife's attorney. We quote from his notice of appeal below. It states that he is appealing from:

1. Order Holding Respondent [Pandozy] in Contempt and for Commitment to County Jail, signed on July 23, 2007.

2. Order of Attachment, signed on July 17, 2007

3. Turnover Order, signed on July 17, 2007

4. Order Declaring 'Raffaele M. Pandozy a Vexatious Litigant, signed on July 17, 2007.

5. Order Denying Motion to Sever Judgment of December 4, 2003, signed on August 28, 2007.

The judgment of dismissal of the underlying action was signed on December 4, 2003. This notice of appeal was filed four years later, on October 15, 2007. As in any case, the first question is whether we have jurisdiction over the appeal.

Generally, only final decisions of trial courts are appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985); see Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997) (final judgment of district and county courts). Some appeals from particular types of interlocutory orders have also been authorized by the Legislature. See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Vernon Supp. 2007). Therefore, appeals can generally be taken only from final judgments and appealable interlocutory orders. Lehmann, 39 S.W.3d at 195. Generally, if an order is not either a final judgment, or one from which the Legislature has authorized appeal, we have no authority to review the court's ruling.

In this case, there are two separate problems. The first involves the appellate timetable and the timeliness of any attempted appeal, either from the judgment or from later orders, while the second involves the question of whether any of the 2007 orders are individually appealable.

It is clear that if this is an attempt to appeal from the 2003 judgment, it is untimely brought, and we may not address it. ⁽¹⁾ The notice of appeal also refers to several separate orders within its body, and reading it liberally, we will also look to see whether any appeal from these orders is properly within our jurisdiction to consider. These are all orders entered post-judgment in the underlying proceeding.

1) The Order of Contempt, Signed July 23, 2007

On August 31, 2007, Pandozy filed a request seeking the entry of findings of fact and conclusions of law on an August 22 judgment. There is no August 22 judgment. However, the request goes on to specifically seek findings on Pandozy's motion to sever the December 4, 2003, judgment, motion to set aside the judgment for contempt, and his motion for a protective order against production, and to quash depositions. The request was not filed within twenty days of the date on which the order of contempt was signed, and, thus, an appeal from that order is not timely. ⁽²⁾

However, regardless of timeliness, in Texas there is no appeal from an order holding a person in contempt that involves jail time, as does this one. Ex parte Williams, 690 S.W.2d 243 n.1 (Tex. 1985); Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967); Saenz v. Saenz, 756 S.W.2d 93, 95 (Tex. App.--San Antonio 1988, no writ). Relief is available only through an application for writ of habeas corpus. Grimes v. Grimes, 706 S.W.2d 340, 343 (Tex. App.--San Antonio 1986, writ dism'd) (citing Wagner v. Warnash, 156 Tex. 334, 295 S.W.2d 890, 893 (1956)). Contempt orders that do not involve confinement may be reviewed only through mandamus. In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.--Dallas 2007, no pet.).

For either of these alternative reasons, no appeal from the 2007 contempt order can be properly considered by this Court.

2) Order of Attachment [Directing that he be brought before the court--Pandozy failed to appear], Signed on July 17, 2007

Pandozy's August 31, 2007, request for findings of fact does not reference this order in any respect. Thus, it could not serve to extend the appellate timetable, and even if the order was one that was appealable, the notice of appeal was filed nearly ninety days after the order was signed, and thus would clearly be untimely. ⁽³⁾ The untimely filed notice of appeal could thus not serve to invoke the jurisdiction of this Court.

3) Turnover Order, Signed July 17, 2007

Pandozy's August 31, 2007, request for findings of fact does not reference the turnover order in any respect, and did not serve to extend the appellate timetable for that order. ⁽⁴⁾ The notice of appeal was filed nearly ninety days after the turnover order was signed, and thus, under any combination of circumstances, was untimely. Therefore, we also lack jurisdiction over this portion of Pandozy's appeal. Even had the notice of appeal been timely filed, Pandozy states in his brief that he paid the sums due under the judgment that were the basis for the turnover order. Accordingly, the issue of its correctness is now moot. See Marshall v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782, 787 (Tex. 2006).

4) Order Declaring Pandozy "Vexatious Litigant," Signed July 17, 2007

Yet again, the request for findings of fact does not seek any findings concerning the order dated July 17, 2007, nor does it state that it is a request for such findings in any regard. Assuming that it was a separate, appealable order, the time for filing a notice of appeal expired on August 18, 2007. ⁽⁵⁾ The notice of appeal was untimely, and we do not have jurisdiction over the appeal.

5) Order Denying Motion to Sever Judgment of December 4, 2003, Signed August 28, 2007

Pandozy's request for findings of fact does not refer to this order in any respect. Thus, even were this order appealable, any notice of appeal was required to be filed no later than thirty days after that date: September 28, 2007. ⁽⁶⁾ The notice of appeal was filed on October 15. The notice of appeal was untimely and was also not filed within the potential grace period for late filing.

We have no jurisdiction over any aspect of this attempted appeal.

We dismiss the appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: March 13, 2008

Date Decided: March 14, 2008

1. Tex. R. App. P. 26.1.

2. See Tex. R. App. P. 26.1(a)(4).

3. See Tex. R. App. P. 26.1.

4. As a general rule, turnover orders are final, appealable orders. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 909 S.W.2d 505, 506 (Tex. 1995); In re Hamel, 180 S.W.3d 226, 229 (Tex. App.--San Antonio 2005, orig. proceeding).

5. Tex. R. App. P. 26.1.

6. Tex. R. App. P. 26.1.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-09-00183-CR

                                                ______________________________

                              WILLIAM HOWARD NELSON, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                      On Appeal from the 202nd Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 07F0228-202

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                      MEMORANDUM OPINION

            William Howard Nelson was convicted by a Bowie County jury of aggravated assault.   The jury also assessed punishment; the jury found two enhancement allegations true and assessed a sentence of thirty years’ incarceration and a fine of $10,000.00.^[1]  On appeal, Nelson claims that the trial court did not have jurisdiction to enter a sentence of thirty years for a second degree felony and that an error in the trial court’s judgment renders the judgment void.   We overrule Nelson’s points of error and affirm the trial court’s judgment and sentence.

I.          Judgment Nunc Pro Tunc

            Nelson’s two points of error concern the trial court’s judgment and sentence; the underlying facts of the case are not in dispute.   After finding Nelson guilty of aggravated assault, the jury heard evidence on punishment.   First, the prosecutor read two enhancement allegations, one alleging a prior felony conviction for possession of a controlled substance in Arkansas, and another alleging a prior felony conviction in Texas.  Nelson pled “true” to both allegations.  The State then offered two pen packets, one of which (State’s exhibit 7) proved the Arkansas conviction; the other (State’s exhibit 8) proved the Texas conviction.  The trial court’s charge to the jury instructed the jury that Nelson had pled “true” to the two enhancement allegations; the jury was instructed to find those allegations true and issue a sentence of not less than twenty-five years, not more than ninety-nine years, or life imprisonment.   The jury’s verdict found the two enhancement allegations “true” and assessed a sentence of thirty years.   Aggravated assault is a second degree felony, with a range of punishment of not less than two, not more than twenty years’ incarceration.  Tex. Penal Code Ann. § 12.33 (Vernon Supp. 2009).   With two adequately proved enhancement allegations, that range of punishment is increased to not less than twenty-five, not more than ninety-nine years in prison, or life.   Tex. Penal Code Ann. § 12.42(d).

            Notwithstanding Nelson’s pleas of “true” to the two enhancement claims, and the jury’s verdict, the trial court’s judgment states “N/A” in the blanks for pleas to enhancement paragraphs and findings on enhancement paragraphs.   Nelson claims, in his first point of error, that because, according to the judgment, there was no finding on any enhancement allegation, the crime for which he was convicted was still a second degree felony.  Therefore, reasons Nelson, the trial court was without jurisdiction to sentence him beyond the second degree felony punishment range of not less than two, not more than twenty years.   In his second point of error, Nelson claims the sentence is void because it is outside the statutory range of punishment for a second degree felony.

            The State responds that the trial court judgment contains a clerical error and directs us to an amended, or nunc pro tunc, judgment in the trial court’s file.  The amended judgment correctly reflects Nelson’s pleas of “true” to the two enhancement allegations read to the jury and indicates the trial court found both allegations to be true.   As a general rule, when the oral pronouncement of sentence and the written judgment differ, the oral pronouncement controls.  Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005); see also Ex parte Thompson, 273 S.W.3d 177, 178 n.3 (Tex. Crim. App. 2008) (when oral pronouncement of sentence and written judgment vary, oral pronouncement controls and written judgment can be corrected via nunc pro tunc).  A nunc pro tunc judgment is appropriate to correct clerical errors in a judgment.  A clerical error is one “in which no judicial reasoning contributed to [its] entry, and for some reason [was] not entered of record at the proper time.”  State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994); State v. Dudley, 223 S.W.3d 717, 721–22 (Tex. App.—Tyler 2007, no pet.); see also Tex. R. App. P. 23.1, 23.2.  Nunc pro tunc orders are not appropriate to address “judicial errors,” errors that are the product of judicial reasoning or determination.  Bates, 889 S.W.2d at 309; Dudley, 223 S.W.3d at 722.

            Nelson clearly pled “true” to the enhancement allegations, and the jury found them true.   The original judgment did not accurately reflect those matters, and the trial court’s amended judgment was an appropriate remedy to make the written judgment correctly reflect proceedings in the trial court and the trial court’s pronounced sentence.  Jones v. State, 795 S.W.2d 199, 202 n.1 (Tex. Crim. App. 1990) (purpose of nunc pro tunc order is to have court records accurately reflect judgment actually rendered).  The trial court merely corrected a clerical error.  As the judgment now correctly states that the enhancement allegations were found to be “true,” there is nothing to support Nelson’s argument that based on the face of the judgment, his sentence was not within the statutory range of punishment.  Accordingly, Nelson’s two appellate points of error must fail.

II.        The Enhancement Allegations

            Although not initially raised by Nelson, upon our review of the record, we discovered  some anomalies in the record.  When the State first indicted Nelson, a prior felony conviction in Arkansas was alleged as an enhancing allegation.  Later, the State amended the indictment; in the amended indictment:  the Arkansas conviction was deleted and two Texas felony convictions were alleged for the purpose of enhancing Nelson’s range of punishment.  Then, when the State read the enhancement allegations at the beginning of the punishment phase of trial, rather than reading the enhancements in the amended indictment, the State read or announced the Arkansas conviction and one of the Texas convictions from the amended indictment.  Nelson then entered a plea of “true” to the enhancement allegations. An explanation for this action appears to be that the two Texas convictions, alleged in the amended indictment, were rendered on the same day and resulted in concurrent sentences, thus defeating the sequencing requirement of Section 12.42(d) of the Texas Penal Code (“[t]he second previous felony is for an offense that occurred subsequent to the first previous conviction having become final . . . .”).

            Enhancement allegations which would increase a defendant’s range of punishment do not have to be alleged in the indictment; the defendant, though, must be afforded adequate notice of the State’s intent to seek a greater range of punishment.   Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997).  Further, the Texas Court of Criminal Appeals has held that “due process does not even require that the notice be given before the guilt phase begins,” and where the defendant does not offer a defense to the enhancement allegations or suggest he or she needs a continuance in order to prepare a defense, “notice given at the beginning of the punishment phase satisfies the federal constitution.” Villescas v. State, 189 S.W.3d 290, 294 (Tex. Crim. App. 2006). 

            During the trial, it was apparent that the State was attempting to enhance Nelson’s  punishment with previous convictions.  In voir dire, the State discussed the possibility that Nelson’s sentencing range, if convicted, could be that of a second degree felony or twenty-five to ninety-nine years or life.  Nelson made no objection, and he did not object to the punishment charge or evince any surprise that he faced the enhanced punishment range.^[2]  No defense was presented to these allegations, and no continuance was sought.

            Once the State established its intent to seek the enhanced range of punishment, it had to adequately prove those allegations. Previously, the State had given Nelson notice that the Arkansas conviction would be used as one of the enhancement allegations.  While it might be argued (though Nelson does not) that the State abandoned the Arkansas conviction as an enhancing felony conviction after not re-alleging it in the amended indictment, such argument would not prevail.  Even though the Arkansas conviction was no longer alleged in the indictment, Nelson was on notice (a) that the State intended to seek the higher range of punishment and (b) that the State was aware of the Arkansas conviction and the two Texas convictions. With this information, Nelson had ample opportunity to verify the accuracy of these previous convictions. Evidence of all three convictions, in the form of judgments and a Texas pen packet, were admitted at trial without objection, and Nelson distinctly pled “true” when the Arkansas conviction and one of the Texas convictions were read aloud to him at trial.  Further, there was no objection when the jury was instructed concerning the use of the Arkansas conviction to enhance punishment.

            There being adequate notice to Nelson of the State’s intent, and sufficient proof (to which Nelson had no objections), we find no error in Nelson’s being subjected to the enhanced range of punishment.  We affirm the trial court’s judgment and sentence, as amended by the trial court. 

                                                                                    Jack Carter

                                                                                    Justice

Date Submitted:          May 10, 2010

Date Decided:             June 29, 2010

Do Not Publish          

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^[1]In neither the trial court’s judgment nor its later amended judgment was the fine imposed.  Section 12.42(d) of the Texas Penal Code does not provide for a fine, despite the trial court’s including that provision in its charge.  Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009).

^[2]Compare Hughen v. State, 265 S.W.3d 473 (Tex. App.—Texarkana 2008), aff’d, 297 S.W.3d 330 (Tex. Crim. App. 2009) (no error where defendant had notice well before and throughout trial State intended to seek enhanced punishment range; trial court ruled, at beginning of punishment, enhancement would not be allowed; following close of punishment evidence, but before reading the charge or allowing final argument, trial court allowed enhancement to be sought).