John Prince v. State ( 2017 )

Opinion issued April 20, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00200-CR
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JOHN PRINCE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 750376
MEMORANDUM OPINION
In 1997, after appellant, John Prince, with counsel, pleaded guilty to the first-
degree felony offense of cocaine possession, the trial court assessed his punishment
at twenty years’ confinement. The judgment of conviction, signed by the trial court
on October 22, 1997, under trial court cause number 750376, stated that Prince’s
sentence was “to run concurrent with cause #85307A in the 12th Judicial District
Court of Avoyelles Parrish, Louisiana,” and credited him with 191 days pre-sentence
jail time credit. Prince did not appeal this judgment.
On February 21, 2017, Prince mistakenly filed a pro se notice of appeal in this
Court from the same trial court cause number 750376. The Clerk of this Court
forwarded Prince’s notice of appeal to the district clerk, and it is deemed filed there
on February 21, 2017. See TEX. R. APP. P. 25.2(c)(1). Prince’s notice of appeal
states that he is appealing from the district clerk’s memo response to his “Motion for
Nunc Pro Tunc and Order” (hereinafter, “Motion”), which was received by the
district clerk on January 26, 2017, but he claims that the district clerk did not give
him the date it denied his Motion. Although the district clerk included an unsigned
certification of appellant’s right of appeal, no box was checked, and there was no
related order signed by the trial court in the clerk’s record. Prince also filed two pro
se motions requesting a free record and the appointment of counsel in this Court.
We dismiss this appeal for want of jurisdiction and the motions as moot.
An appeal must be dismissed if a certification showing that the defendant has
the right of appeal has not been made part of the record. TEX. R. APP. P. 25.2(d); see
Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). The Clerk of this
Court requested a signed certification of appellant’s right of appeal, if any, or an
affidavit stating that no signed order relating to that certification exists in the district
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clerk’s file, to be filed by the district clerk in a supplemental clerk’s record. See
TEX. R. APP. P. 25.2(a)(2), (d), 37.1. On April 11, 2017, the district clerk filed a
supplemental clerk’s record in this Court including an affidavit confirming that there
was no order signed by the trial court relating to that unsigned certification of
appellant’s right of appeal in the district clerk’s records.
Although Rule 25.2(d) requires this Court to dismiss a criminal appeal when
the appellate record does not contain a certification showing that appellant has the
right to appeal, Rule 44.4 prohibits us from dismissing an appeal based on the lack
of a valid certification if the appellant has a right to appeal. See TEX. R. APP. P.
25.2(d), 44.4(a); see also Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App.
2005). The right to appeal in criminal cases is conferred by the legislature, and a
party may appeal only from judgments of conviction or orders authorized as
appealable. See TEX. CRIM. PROC. CODE ANN. art. 44.02 (West 1977); TEX. R. APP.
P. 25.2(a)(2); see also Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014).
“A nunc pro tunc judgment is an appealable order under Article 44.02 if the appeal
is timely filed.” Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012); see
also Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004) (providing
that appropriate remedy for order denying motion for judgment nunc pro tunc or
failure of trial court to respond to such motion is to file mandamus petition in court
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of appeals).1
However, here, Prince attempts to appeal, not from a trial court’s signed nunc
pro tunc judgment, but from the district clerk’s memo response to his Motion
requesting a nunc pro tunc judgment. A district clerk’s memo response is akin to a
docket entry because it is not an order signed or entered by the trial court and, thus,
it is not appealable. See State v. Sanavongxay, 407 S.W.3d 252, 258–59 (Tex. Crim.
App. 2012) (holding that “entered by the court,” under Texas Code of Criminal
Procedure article 44.01(d), “encompasses the signing of an order by the trial judge”)
(citation omitted); see, e.g., Ford v. State, No. 13-14-00466-CV, 2014 WL 6602307,
at *1 (Tex. App.—Corpus Christi Nov. 20, 2014, no pet.) (per curiam) (mem. op.,
not designated for publication) (noting that “[a] docket sheet entry is a memorandum
made for the convenience of the trial court and the court clerk” and “may not take
the place of a separate order, and a trial court’s oral pronouncement is not appealable
until a written order is signed”) (citations omitted). Thus, the only appealable order
in the clerk’s record here is Prince’s judgment of conviction signed by the trial court
on October 22, 1997, for which any appeal is untimely. See TEX. R. APP. P.
26.2(a)(1).
1
On March 30, 2017, Prince filed a pro se petition for writ of mandamus, under the
underlying trial court cause number 750376, seeking to compel the respondent trial
court judge to rule on his pending pro se Motion. This petition was assigned to
appellate cause number 01-17-00225-CR.
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Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.
P. 25.2(d), 43.2(f). We dismiss all pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Bland, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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