in Re Johnny Ray Abbott

IN THE
TENTH COURT OF APPEALS
No. 10-08-00424-CR
IN RE JOHNNY RAY ABBOTT
Original Proceeding
MEMORANDUM OPINION
Johnny Ray Abbott seeks a writ of mandamus compelling Respondent, the
Honorable Gene Knize, Judge of the 40th District Court of Ellis County, to grant his
motion for a nunc pro tunc order. However, because Respondent’s court does not
presently have jurisdiction in the underlying proceeding, Abbott’s request is premature
and will be denied.
Abbott was convicted of indecency of a child and sentenced to twenty years’
imprisonment. This Court affirmed the judgment of conviction but reversed that
portion of the judgment assessing punishment, and remanded the case to the trial court
for a new punishment hearing. See Abbott v. State, 196 S.W.3d 334, 349 (Tex. App.—
Waco 2006, pet. ref’d). On remand, a new jury assessed Abbott’s punishment at ten
years’ imprisonment and recommended that Respondent suspend imposition of
sentence and place Abbott on community supervision. Respondent ordered Abbott to
serve 180 days in jail as a condition of community supervision. Respondent later
denied Abbott’s post-judgment motion to receive credit for the time he had served
during the pendency of his appeal, which was 740 days. See Abbott v. State, 245 S.W.3d
19, 20 (Tex. App.—Waco 2007), rev’d, No. PD-1816-07, 2008 Tex. Crim. App. LEXIS 856
(Tex. Crim. App. Sept. 10, 2008). This Court reversed Respondent’s order denying
Abbott’s motion for time credit and remanded the cause with instructions to give him
credit for the time he had served during the pendency of the appeal and “immediately
release” him. Id. at 23. The Court of Criminal Appeals reversed and remanded, holding
that this Court did not have appellate jurisdiction to address this sentencing issue
because there is not “any rule or any statutory or constitutional provision that would
authorize” such an appeal. Abbott, 2008 Tex. Crim. App. LEXIS 856, at *8.
Abbott filed a motion for rehearing in the Court of Criminal Appeals on
September 25. That motion was denied on November 7. The Court of Criminal
Appeals issued its mandate on November 21, returning Abbott’s appeal to this Court
where it remains pending. Abbott filed a motion for entry of a nunc pro tunc order in
the underlying proceeding on December 8. Respondent has not ruled on this motion.
Rule of Appellate Procedure 25.2(g) provides, “ Once the record has been filed in
the appellate court, all further proceedings in the trial court—except as provided
otherwise by law or by these rules—will be suspended until the trial court receives the
appellate-court mandate.” TEX. R. APP. P. 25.2(g).
In re Abbott Page 2
Here, Respondent has not yet received the mandate of this Court in Abbott’s
appeal. Therefore, Respondent does not have jurisdiction to act on Abbott’s motion for
entry of a nunc pro tunc order. See id.; State ex rel. Holmes v. Shaver, 824 S.W.2d 285, 289
(Tex. App.—Texarkana 1992, orig. proceeding); Drew v. State, 765 S.W.2d 533, 535-36
(Tex. App.—Austin 1989), pet. dism’d, improvidently granted, 805 S.W.2d 451 (Tex. Crim.
App. 1991) (per curiam); see also TEX. R. APP. P. 23.1 (“unless the defendant has
appealed,” a trial court may enter a judgment nunc pro tunc); cf. Ware v. State, 62 S.W.3d
344, 353-54 (Tex. App.—Fort Worth 2001, pet. ref’d) (trial court retains jurisdiction to
enter judgment nunc pro tunc after notice of appeal is filed until appellate record is
filed). Because Respondent does not have jurisdiction, he cannot have abused his
discretion by refusing to rule on the motion.
Accordingly, we deny Abbott’s mandamus petition.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied
Opinion delivered and filed January 28, 2009
Do not publish
[OT06]
In re Abbott Page 3