Nunes, Ex Parte James ( 2006 )

  











IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. PD-0974-05

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EX PARTE JAMES NUNES, Appellant

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ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS TRAVIS COUNTY

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Hervey, J., delivered the opinion of the Court in which Keller, PJ., Meyers, Johnson, Keasler and Cochran, JJ., joined. Price, Womack and Holcomb, JJ., concurred.



O P I N I O N

   Tex. R. App. P. 26.2(a)(1) requires a defendant to file a notice of appeal within 30 days "after the day the trial court enters an appealable order." We granted discretionary review to reexamine this Court's precedents holding that the act of entering an appealable order occurs when the trial court signs the order.

On December 4, 2002, appellant was convicted of a Class A misdemeanor assault committed against his then-wife, Roberta, for which appellant received a probated sentence of two years. Roberta did not testify at trial. Appellant did testify at trial. We set out some of the facts from the opinion of the Court of Appeals.

On May 13, 2002, appellant and his wife, Roberta Nunes, had an argument that escalated into a physical confrontation. The following facts are not in dispute. Between 5:30 and 6:00 p.m. on that day, Mrs. Nunes arrived at appellant's place of employment, Dell Computers. She called appellant from the lobby. After approximately fifteen minutes, appellant came downstairs. The couple argued about appellant's cellular telephone bill, which Mrs. Nunes believed evidenced that appellant was having an affair. To avoid a confrontation in the office, the couple agreed to continue the conversation at home.

Appellant and Roberta Nunes left in separate cars. She drove behind him, at times aggressively and "right on [his] bumper." They continued to argue with one another on their cell phones as they drove home. At home, as was their usual practice, appellant parked in the driveway and Mrs. Nunes parked in the garage. With Mrs. Nunes yelling, they continued to argue. As appellant began unlocking the door, Mrs. Nunes began to hit appellant on his back and head with her fists. Appellant struck back, by his own testimony, three or four times. He tried to "swat" her away and then grabbed her neck and pushed her away and over the arm of a nearby couch. By his own testimony, appellant admitted that, as he tried to swat her off and she would not let go[.]

I finally just reached and grabbed her neck and tried to get her off of me, and then I finally squeezed a little bit to get her away from me and I pushed her to get her off of me. And she went backwards and she kind of fell backwards over the corner of the couch and hit her head.

Roberta Nunes fell from the couch to the floor, hitting her head on a coffee table hard enough to knock a chip out of the table and leaving a small piece of flesh on the table.

At 6:56 pm., Mrs. Nunes called the 9-1-1 emergency operator, asking for assistance and advising the operator that appellant had tried to kill her. Appellant also spoke to the operator, asking for the police to be sent over and explaining that his wife was exaggerating.

Nunes v. State, 2003 Tex. App. LEXIS 10151, 03-03-00106-CR (Tex.App.-Austin, December 4, 2003, pet. ref'd) (not designated for publication). ⁽¹⁾

The Court of Appeals' opinion also describes what several police witnesses observed when they arrived at the residence such as "indications that [Roberta] had been assaulted, including a piece of flesh on the coffee table that appeared to come from the top of her head." Id. The Court of Appeals' opinion also recounts Roberta's out-of-court statements that were admitted into evidence through these and other prosecution witnesses over appellant's hearsay objections. Id. ⁽²⁾ This included an out-of-court statement Roberta made to a hospital emergency room physician that appellant "tried to strangle her." Id.

In a direct appeal to the Court of Appeals, appellant claimed that Roberta's out-of-court statements were erroneously admitted into evidence under the excited utterance exception to our state hearsay rule set out in Tex. R. Evid. 803(2) and under the Confrontation Clause of the Sixth Amendment to the United States Constitution. After noting that "appellant testified to each of the challenged [out-of-court] statements," except for Roberta's out-of-court statement that appellant tried to strangle her, the Court of Appeals decided that the trial court did not abuse its discretion to admit Roberta's out-of-court statements as excited utterances. ⁽³⁾

The Court of Appeals issued its opinion on December 4, 2003. Appellant filed a discretionary review petition in this Court. On March 8, 2004, the United States Supreme Court decided Crawford v. Washington ⁽⁴⁾ which "reconceived much of the Court's prior Confrontation Clause jurisprudence in a manner that is potentially inconsistent" ⁽⁵⁾ with the trial court's and the Court of Appeals' admission of Roberta's out-of-court statements. ⁽⁶⁾ On July 28, 2004, this Court refused discretionary review. ⁽⁷⁾

On December 21, 2004, appellant filed in the convicting court a post-conviction habeas corpus application pursuant to Article 11.072, Tex. Code Crim. Proc. ⁽⁸⁾ This application alleged, among other things, that appellant's trial counsel was ineffective ⁽⁹⁾ for failing to make a Sixth Amendment Confrontation Clause objection to the admission of Roberta's out-of-court statements independently of his hearsay objections to these statements. To support this application, appellant's trial counsel stated in an affidavit that he mistakenly believed that his hearsay objections to this evidence also encompassed any Sixth Amendment Confrontation Clause objections even though he had been informed to the contrary by another lawyer in his firm.

The convicting court adopted the State's numerous proposed findings and conclusions which concluded, among other things, that "[t]he Sixth Amendment does not require and trial counsel cannot be found ineffective for failure to foresee future changes in the law that might affect their clients." These findings also contained a finding to the effect that a Sixth Amendment Confrontation Clause objection by appellant's trial counsel to the admission of Roberta's out-of-court statements would not have been meritorious under then-existing United States Supreme Court case law. ⁽¹⁰⁾

Apparently following the procedures set out in Article 11.07, Tex. Code Crim. Proc., the convicting court signed an order recommending that this Court deny habeas corpus relief and ordering the clerk to send the findings and other things to this Court. Compare Article 11.07, § 3(c), Tex. Code Crim. Proc., (requiring clerk to transmit copy of habeas corpus application and other things to this Court) & Article 11.07, § 5, Tex. Code Crim. Proc., (this Court grants or denies relief on Article 11.07 habeas corpus application) with Article 11.072, § 8, Tex. Code Crim. Proc., (convicting court grants or denies relief on Article 11.072 habeas corpus application with right of appeal to intermediate appellate court). ⁽¹¹⁾ The convicting court's order states that it "adopts the above State's Memorandum, Findings of Fact and Conclusions of Law as its own and recommends that the relief [appellant] requests should be DENIED."

The convicting court judge signed this order which recites that it was "signed and entered" on March 15, 2005. The convicting court, however, did not notify the parties until April 25, 2005, that it had signed the order. The file-stamp on the order indicates that it was filed by the clerk on April 27, 2005. ⁽¹²⁾ The habeas record contains an undated letter from the convicting court to the parties. This letter states:

Defendant's Writ of Habeas Corpus came on to be heard the 7^th day of March, 2005. After considering the motions, affidavits, and evidence submitted, the court is of the opinion the Writ should be denied.

The Order is attached and was signed by the Court on the 15^th day of March, 2005. However, Counsel did not receive the Order and Findings of Fact. The same are being delivered by regular mail and Fax on the 25^th day of April, 2005. Any delay from 3/15/05 until 4/25/05 should be attributed to the Court, not Counsel.

Appellant filed a notice of appeal on April 29, 2005. On May 20, 2005, the Court of Appeals dismissed appellant's appeal for lack of jurisdiction because his notice of appeal was not filed within 30 days after the convicting court signed and entered the order appealed from, and because appellant's notice of appeal, filed within the fifteen-day grace period, was not accompanied by a motion for extension of time to file a notice of appeal. Ex parte James Nunes, No. 03-05-00255-CR (Tex.App.-Austin, May 20, 2005) (not designated for publication). The Court of Appeals' opinion states:

James Nunes seeks to appeal from an order denying relief in a habeas corpus proceeding. See [Article 11.072]. The trial court's order was signed and entered on March 15, 2005. The deadline for perfecting appeal was therefore April 14. [Rule 26.2(a)(1)]. Nunes filed his notice of appeal on April 29, 2005. Although the notice of appeal was filed within the fifteen-day grace period, Nunes did not file a motion for extension of time. See id. rule 26.3 Under the circumstances, we lack jurisdiction to dispose of the purported appeal in any manner other than dismissing it for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996).

We exercised our discretionary authority to review this decision. The two grounds upon which we granted discretionary review state:

Is the term 'entered', as used in [Rule 26.2(a)(1)], synonymous with the term 'signed'?

Is an attorney ineffective for failing to preserve Confrontation Clause error independently from hearsay error?[ ⁽¹³⁾]

Appellant argues that "entering" an order under Rule 26(a)(1) should not be construed synonymously with "signing" the order. He claims that "entering" an order should be construed to mean "entering a document into the record of a case" by "being entered into the permanent record with the Clerk of the Court" which occurs after a trial court signs the order. (Italics in original). ⁽¹⁴⁾ Appellant argues that the appellate clock for filing a notice of appeal should not begin to run until this occurs. He claims that this is logical and common-sense interpretation of "enter" which also fulfills the critical role of notice. Appellant's brief asserts:

It only makes sense that when an order is signed outside of open court, the date on which the order is entered in the record "starts the clock" for filing a Notice of Appeal. This is when the litigants first have notice that an order was signed, and of the contents of the order. It is also the first time when a Notice of Appeal can, as a practical matter, be filed.

A Notice of Appeal filed prior to the entry of the complained-of order in the Clerk's record would be premature, as there could be absolutely nothing in the record to appeal. Counsel is not able to search the Judge's chambers and courtroom on a routine basis in order to locate any signed, but concealed, orders. A trial court may sign an order, put it in her desk to rethink it, and never transmit it to the clerk of the court. Or she may not file it for months or years. Clearly, court orders are not operative until they are entered into the record or announced in open court. The only way to make sense of this is to deem that the appellate time clock begins to run when a written order is made part of the public record, by being entered into the permanent record with the Clerk of the Court.

Indeed, one can imagine what would occur had the Petitioner filed a Notice of Appeal on March 15, 2005,-the day the order was signed. The appeal would have been dismissed as premature as no final order was in the record. May an appeal remain premature until after it becomes untimely? That is the logical and unavoidable conclusion from the Court of Appeals opinion in this case.[ ⁽¹⁵⁾]

(Italics in original).

Appellant also claims that Article 11.072, § 7(b), Tex. Code Crim. Proc., supports his construction of "enter" in Rule 26.2(a)(1). His brief asserts:

[Article 11.072, § 7(b)] is of great interest in this context. It states that "[a]t the time an order is entered under this section, the clerk of the court shall immediately, by certified mail, return receipt requested, send a copy of the order to the applicant and to the state." [Footnote omitted]. (emphasis added.) Thus, an order cannot be entered more than six weeks prior to its being in the hands of the clerk for this immediate service. In fact, the law leaves an open question whether the judge or the clerk physically performs the duty of entering an order. The logical interpretation would leave that physical duty to the clerk.

The law requires the clerk to have access to a document at the time it is entered, in order to comply with [Article 11.072, § 7(b)]. Under [Article 11.072, § 7(b)] it is a logical impossibility for an order to be entered without the clerk's participation. The logical construction is that it is the record of the case, in the clerk's care, that the order must be entered into.

Moreover, [Article 11.072, § 7(a), Tex. Code Crim. Proc.] describes the duties of the judge in the case of a frivolous application as being to "enter a written order denying the application as frivolous." (emphasis added.) Obviously, the legislature considered signing the order and entering it as distinct actions. Otherwise, the rule would merely require the judge to sign the order.

It should be pointed out that nothing in [Article 11.072] gives any reason to believe the date an order is signed is relevant to determination of when time to file a Notice of Appeal starts to run. [Rule 26.2] says nothing about a trial court judge's signing an order. Under under [sic] [Rule 26.2(a)(1)], a defendant has thirty days after the day a written order is entered [footnote omitted] to file a notice of appeal. The date upon which the order is signed is not relevant.

(Italics in original).

This Court's precedents, however, do not support appellant's construction of "enter" in Rule 26.2(a)(1). In State v. Rosenbaum, ⁽¹⁶⁾ a majority of this Court decided that "entered" is synonymous with "signed" under the statute authorizing a State's appeal as set out in Article 44.01(d), Tex. Code Crim. Proc. ⁽¹⁷⁾ Only two judges would have adopted the construction of "enter" advanced by appellant in this case. See Rosenbaum, 818 S.W.2d at 403-405, 405 (Baird, J., concurring, joined by McCormick, P.J.) ("entered by the court" should be construed to mean "the date the signed order is file marked by the clerk"). In specifically rejecting this construction of "enter," the majority opinion in Rosenbaum, 818 S.W.2d at 402, stated:

Indeed, the date of actual entry into the court's record should be irrelevant vis-a-vis appeals by the State under [Article 44.01(d)]. Entry into the records of the court is merely ministerial in nature. (Citation omitted). As a practical matter, a judge may never really know when a signed order, judgment, or ruling is physically entered into the record. There are no consistent deadlines for clerical entry into the record in the courts throughout Texas. To rule that an appeal must be made within a certain time period following entry into the record would serve a gross injustice to all litigants because none would be following the same timetable.

Less than three months after deciding Rosenbaum, a majority of this Court followed that decision in Sutton v. Bage ⁽¹⁸⁾ again rejecting the dissenters' construction of "enter" advanced by appellant in this case. ⁽¹⁹⁾ It is, therefore, clear that this Court has considered and rejected the position advanced by appellant in this case. We further note that this Court's almost fifteen-year-old precedent in Rosenbaum has not unleashed the parade of horrors described in appellant's brief. ⁽²⁰⁾

We nevertheless find it unnecessary in this case to reconsider precedents such as Rosenbaum. ⁽²¹⁾ The record reflects that the convicting court, consistent with Article 11.07 procedures, entered an order recommending that this Court deny appellant's request for habeas corpus relief. The convicting court's order does not specifically deny [or grant] appellant's requested relief as required by Article 11.072, § 6(a), Tex. Code Crim. Proc., ⁽²²⁾ which would trigger appellant's right to appeal under Article 11.072, § 8. ⁽²³⁾ In this case, therefore, it does not matter how this Court might construe the term "enter" in Rule 26.2(a)(1) because there is no valid order for appellant to appeal from anyway. The Court of Appeals correctly determined that it had no jurisdiction over the appeal even though it may have given the wrong reasons.

The judgment of the Court of Appeals is affirmed, and the case is remanded to the convicting court for further proceedings consistent with this opinion.

   Hervey, J.

Delivered: May 3, 2006

Do Not Publish

1. We cite to the Court of Appeals' unpublished opinion for the purpose of setting out some of the facts of this case and not for any precedential value. See Tex. R. App. P. 47.7 (intermediate appellate court unpublished opinions have no precedential value but may be cited with the notation "(not designated for publication)."; Tex. R. App. P. 77.3 (unpublished opinions have no precedential value and must not be cited as authority by counsel or by a court).

2. For example, the Court of Appeals' opinion states:

Austin Police Officer Randy Garcia arrived at the Nunes home at 7:05 p.m. Through the front door of the residence, he heard a woman crying and screaming hysterically. When Roberta Nunes answered the door, he observed that she was "crying, hysterical, fearful, very emotional." She immediately told Garcia that her husband had hit her and banged her head against a coffee table. She had visible injuries. The officer attempted to calm her and then began to ask her questions to determine what happened.

Nunes, 2003 Tex. App. LEXIS 10151.

3. The Court of Appeals' opinion states:

That Roberta Nunes was still dominated by the emotions, excitement, fear, or pain of the event is supported by the record. Moreover, except for Mrs. Nunes's characterization of her husband's intent "to strangle her," appellant testified to each of the challenged statements when he testified on his own behalf. The two doctors also testified as to her injuries and their cause. In addition, Mrs. Nunes's medical records, entered into evidence without objection, contained notes by medical personnel that she had a hematoma on the top of her head and bruises on her neck and that Mrs. Nunes stated, "husband tried to strangle me" and "husband banged her head against the tile counter." When a court has overruled an objection to the admission of evidence, and that same evidence is later admitted without objection, the right to complain about the admission of the evidence on appeal is waived. (Citation omitted). We hold that the trial court did not abuse its discretion in admitting [Roberta's out-of-court statements].

Nunes, 2003 Tex. App. LEXIS 10151.

4. 541 U.S. 36 (2004).

5. Mungo v. Duncan, 393 F.3d 327, 332 (2d Cir. 2004), cert. denied, 125 S.Ct. 1936 (2005).

6. See also Wall v. State, 2006 Tex. Crim. App. LEXIS 16 (Tex.Cr.App. No. PD-1631-04, January 18, 2006) (setting out analytical framework for deciding when admission into evidence of out-of-court statements qualifying as excited utterances under Rule 803(2) violates Crawford and the Confrontation Clause to the Sixth Amendment of the United States Constitution).

7. See Nunes v. State, Tex. Crim. App. LEXIS 1225 (Tex.Cr.App. No. PD-0253-04, July 28, 2004).

8. Article 11.072, § 1, Tex. Code Crim. Proc., states that "[t]his article establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering [probation]."

9. See generally Strickland v. Washington, 466 U.S. 668 (1984).

10. See Ohio v. Roberts, 448 U.S. 56, 66 (1980); Salazar v. State, 38 S.W.3d 141, 155 (Tex.Cr.App.), cert. denied, 534 U.S. 855 (2001) (admission into evidence of out-of-court excited utterances by an unavailable witness did not violate Sixth Amendment's Confrontation Clause).

11. Appellant's brief also asserts:

It appears that the Clerk declined to follow [the convicting court's] order as written, as the Order required that the file be transmitted to this Honorable Court and not the Court of Appeals. Instead, the clerk properly handled the matter under [Article] 11.072.

12. The record is silent on why the parties did not learn until April 25, 2005, that the convicting court had signed the order on March 15, 2005. Appellant's brief states:

Although the order read that it was "signed and entered" on March 15, 2005, the trial court judge did not immediately give that document to a clerk or transmit it to the parties. He kept the signed document private, and took no actions to enter it as part of this case. (Citations to record omitted). The record is silent as to the reason why the judge withheld the document: whether error, uncertainty as to the document's propriety, or mere absent-mindedness. The record shows that the first time anyone associated with the case was informed the document had been signed was on April 25, 2005. (Citations to record omitted). The document was not in fact entered into the Record until April 27, 2005. (Citations to record omitted).

(Italics in original).

13. This issue was not addressed by the Court of Appeals. We, therefore, exercise our discretion to dismiss this ground as improvidently granted. See Tex. R. App. Proc. 69.3.

14. Under this construction of "enter," the order in this case, signed on March 15, 2005, was not "entered" until April 27, 2005, when the clerk filed the order among the other documents and papers in the case as shown by the clerk's file-stamp. See Black's Law Dictionary (7^th Ed.) at 552 (defining "enter" as, among other things, "[t]o put formally before a court or on the record").

15. We note, however, that under Tex. R. App. Proc. 27.1(b) a prematurely filed notice of appeal is usually "effective and deemed filed on the same day, but after, . . . the appealable order is signed by the trial court." (Emphasis supplied). It is also significant that Rule 27.1(b) refers to an appealable order being signed, not entered, by the trial court.

16. 818 S.W.2d 398, 401-02 (Tex.Cr.App. 1991).

17. Like Rule 26.2(a)(1), Article 44.01(d) provides that a prosecuting attorney may not appeal "later than the 15^th day after the date on which the order, ruling, or sentence to be appealed is entered by the court." See also Tex. R. App. Proc., 26.2(b) (State's notice of appeal "must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed").

18. 822 S.W.2d 55, 57 (Tex.Cr.App. 1992).

19. See Bage, 822 S.W.2d at 57 (McCormick, P.J., dissenting, joined by Baird, J.) ("instant case presents in dramatic fashion the mischief that is potential in this Court's holding in [Rosenbaum]") and at 58 (Baird, J., dissenting, joined by McCormick, P.J.).

20. For example, appellant argues:

Indeed, it is impossible to conceive of an interpretation of the terms due process and due course of law that would permit a notice of appeal to remain premature until it becomes untimely. If the result of a case can be kept hidden from the litigants themselves until the time to file a Notice of Appeal has expired, the right to appeal is empty, available only at the arbitrary whim of a judge. A judge who retires to consider a matter cannot rule, refusing to file or announce his ruling until after time to appeal has passed, without denying the litigants resort to appellate procedures so carefully crafted into Texas law. Thus, any principles of due process and due course of law would be entirely subverted and eviscerated by a holding that "entering" an order means anything other than entering it into the records of the case.

(Italics in original).

21. See generally Robbins v. State, 88 S.W.3d 256, 261 (Tex.Cr.App. 2002) (merely demonstrating that a precedent is "wrong" is not, standing alone, sufficient to disregard stare decisis principles); Awadelkariem v. State, 974 S.W.2d 721, 725-26 (Tex.Cr.App. 1998) (non-exhaustive list of factors that appellate courts should consider in deciding whether to overrule a precedent).

22. Article 11.072, § 6(a), provides that "[n]ot later than the 60^th day after the day on which the state's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application."

23. Article 11.072, §8, provides that the applicant may appeal "[i]f the application is denied in whole or part."