Suesberry v. State ( 1913 )

Appellant files a motion for a rehearing in which he has the clerk to certify the "motion docket" shows that leave was granted to file an amended motion for a new trial, and that same was overruled by the court — the certificate reading: "I, Max Andrews, Clerk of the Criminal District Court of Harris County, Texas, do hereby certify that the foregoing is a true and correct copy of the original entry as it appears on the motion docket of the Criminal District Court of Harris County." This term of court adjourned on the third day of May, 1913, and no order or judgment was entered in the minutes of this court, but since the original opinion was rendered by this court, counsel for appellant has prevailed on the court to attempt to make a nunc pro tunc order, the order reciting that "whereas the order of the court made on the 26th day of April, 1913, and the minutes of the court fail to show that the court overruled said amended motion for a new trial, it is now ordered and adjudged that this order be entered in the minutes of the court nunc pro tunc, now for then as it was the original order intended to be entered on the minutes of said court."

The question arises, can the court order this judgment entered nunc pro tunc, without notice to a person, while the case is pending in this court? In the case of Long v. State, 3 Texas Crim. App., 321, it was said: "The notice of appeal was not entered of record, though the clerk certifies that the notes madeby the judge upon his docket show that defendant gave notice of appeal. The entries on the judge's docket will not supply theplace of or supersede the necessity for an entry upon therecord." Lawrence v. State, 14 Tex. 432; Hughes v. State,33 Tex. 683. This has always been the rule in this court, that the entry or order to be of any force and effect must be carried forward into the minutes of the court, and where the entry was not made in the minutes at the term of court, no nunc pro tunc entry or order can be made while the case is pending in this court on appeal. In the case of Estes v. State, 38 Tex. Crim. 506, this court, speaking through Judge Davidson, said: "Appellant was convicted at the September term, 1896. He filed a motion for a new trial, which was overruled, and gave notice of appeal. The judgment was not entered at that term, but was entered nunc pro tunc at the March term, 1897. Under this state of case the court below had lost authority to enter judgment at the March term, 1897. When the September term, 1896, closed, the notice of appeal having been given, jurisdiction had attached to this court. The judgment was not a lost or destroyed part of the record, and, therefore, could not be entered pending the appeal — the trial court had lost jurisdiction," citing Lewis v. State, 34 Tex.Crim. Rep.; Quarles v. State, 37 Tex. Crim. 362. This has not only been the rule in this court, but the Code of our State so provides.

Thus it is the entry on the motion docket, but not carried into the minutes of the court, and can not be considered by this court, and the trial court had no authority nor power to enter the nunc pro tunc order in December when the term of court at which the appellant was tried adjourned in May previous, and notice of appeal given at that term. It is strange to us that attorneys will not give care, consideration and attention to seeing that the judgments and orders are entered in criminal that they do in civil cases, but so long as they are negligent in this respect we are powerless to aid them until the Legislature changes the law.

The motion for rehearing is overruled.

Overruled.

[Rehearing denied January 14, 1914. — Reporter.]