Opinion
NO. 01-19-00389-CR
04-28-2020
ARTHUR DAVID LOWE JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court Harris County, Texas
Trial Court Case No. 283709
MEMORANDUM OPINION
The State has filed a motion to dismiss this appeal for want of jurisdiction. We grant the motion and dismiss the appeal.
Background
Appellant, Arthur David Lowe, Jr., was charged by indictment in 1978 with the felony offenses of indecency with a child and rape of a child. Pursuant to a plea bargain agreement, the State abandoned the charge of rape of a child and appellant pleaded guilty to the offense of indecency with a child. The trial court accepted appellant's guilty plea and reset appellant's case for a presentence investigation. On January 12, 1979, at the conclusion of the sentencing hearing, the trial court assessed appellant's punishment at four years' imprisonment. Appellant did not pursue a direct appeal of his 1979 conviction.
Forty years after his conviction, on May 7, 2019, appellant filed a pro se pleading entitled "Motion For Nunc Pro Tunc" in the trial court asserting that (1) his plea was involuntary because the trial court allegedly "failed to comply with Article 26.13" and "the official court files is [sic] wholly devoid of any plea admonishments;" and (2) the indictment was "fatally and fundamentally defective, on its face." The trial court denied appellant's "Motion For Nunc Pro Tunc" and filed its Certification of Defendant's Right to Appeal stating that the criminal case "is a plea-bargain case, and the defendant has NO right of appeal." Appellant filed a "General Notice of Appeal" purportedly seeking to challenge the trial court's ruling denying appellant's motion.
Appellant filed a pro se appellate brief asserting the same grounds for relief that appellant alleged in his "Motion For Nunc Pro Tunc" in the trial court, and also alleging two related claims of ineffective assistance of counsel. The State subsequently filed a motion to dismiss the appeal for want of jurisdiction and appellant filed a response to the motion.
Discussion
Denial of Motion for Judgment Nunc Pro Tunc is Not Appealable
The right to appeal in criminal cases is conferred by statute, and a party may appeal only from a judgment of conviction or an interlocutory order as authorized by statute. See TEX. CODE CRIM. PROC. art. 44.02; TEX. R. APP. 25.2(a)(2); Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). A court of appeals does not have jurisdiction to review an interlocutory order in a criminal case when jurisdiction has not been expressly granted by statute. See Ragston, 424 S.W.3d at 52; see also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (explaining appeals "in a criminal case are permitted only when they are specifically authorized by statute"); Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (noting "an interlocutory appeal is an extraordinary remedy"). As discussed below, the trial court's denial of appellant's "Motion for Nunc Pro Tunc" is neither a conviction nor an appealable interlocutory order.
In response to the State's motion to dismiss, appellant asserts that nunc pro tunc judgments are appealable. Appellant relies upon Blanton v. State, 369 S.W.3d 894 (Tex. Crim. App. 2012), in which the Texas Court of Criminal Appeals held that "[a] nunc pro tunc judgment is an appealable order under Article 44.02 if the appeal is timely filed." Blanton, 369 S.W.3d at 904. But a trial court's order denying a defendant's motion for a judgment nunc pro tunc is not, itself, a judgment nunc pro tunc. As our Court explained in dismissing a prior attempt by appellant to appeal the denial of a motion for nunc pro tunc judgment, although a judgment nunc pro tunc is appealable, an order denying a motion to enter a judgment nunc pro tunc is not appealable:
Appellant, Arthur David Lowe, incarcerated and proceeding pro se, attempts to appeal from the trial court's order denying his motion for nunc pro tunc judgment in these two related cases. If the trial court had signed a nunc pro tunc judgment, that would be an appealable order. See Blanton v. State, 369 S.W.3d 894, 904 (Tex. 2012) ("A nunc pro tunc judgment is an appealable order under Article 44.02 if the appeal is timely filed."). However, the trial court's signed order denied appellant's motion for nunc pro tunc judgment in both cases, which is not an appealable order, but may be challenged via petition for a writ of mandamus. See Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010) ("If the trial court denies the motion for judgment nunc pro tunc or fails to respond, relief may be sought by filing an application for writ of mandamus in a court of appeals."); see, e.g., Schofield v. State, No. 01-14-00321-CR, 2014 WL 2538693, at *1 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (per curiam) (mem. op., not designated for publication) (dismissing for want of jurisdiction appeal from denial of motion for judgment nunc pro tunc).Lowe v. State, No. 01-18-00753-CR, 2018 WL 4131173, at *1 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, pet. ref'd) (mem. op., not designated for publication); see also Shelby v. State, 2016 WL 350516, at *1-2 (Tex. App.—Texarkana Jan. 29, 2016, no pet.) (mem. op., not designated for publication) ("It is the nunc pro tunc judgment itself that is appealable, not the ruling on any motion filed to secure the entry of that judgment."); Wilson v. State, No. 02-12-00382-CR, 2013 WL 257278, at *1 (Tex. App.—Fort Worth Jan. 24, 2013, no pet.) (mem. op., not designated for publication) ("An order denying a motion for judgment nunc pro tunc is not appealable.").
Here, the trial court entered an order denying appellant's "Motion For Nunc Pro Tunc" and did not enter a judgment nunc pro tunc in the case. Because the trial court's order denying appellant's motion for entry of a judgment nunc pro tunc is not an appealable order, our Court lacks jurisdiction over this appeal. See Lowe, 2018 WL 4131173, at *1 (dismissing, for want of jurisdiction, appeal from trial court's denial of motion for entry of judgment nunc pro tunc); Shelby, 2016 WL 350516, at *1-2 (same); Wilson, 2013 WL 257278, at *1 (same).
Appellant's 1979 Conviction is Final and Not Appealable
To the extent that appellant seeks to appeal his 1979 conviction, we also must dismiss the appeal for lack of jurisdiction. First, we lack jurisdiction because the notice of appeal was untimely. In a criminal case, a defendant's notice of appeal is due within thirty days after sentence is imposed in open court or the trial court enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). Here, appellant's notice of appeal was filed forty years after the judgment was signed. When an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). Because appellant's notice of appeal was untimely, we lack jurisdiction over this appeal. See TEX. R. APP. P. 25.1.
Second, in a plea-bargain case, a defendant may only appeal those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. TEX. CODE. CRIM. PROC. art. 44.02; TEX. R. APP. P. 25.2(a)(2). 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. 25.2(d); see Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). Here, the clerk's record supports the trial court's certification that this is a plea-bargain case and that appellant has no right of appeal. See TEX. R. APP. P. 25.2(a)(2), (d); Dears, 154 S.W.3d at 615. Because appellant has no right of appeal, we must dismiss this appeal without further action. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006) ("A court of appeals, while having jurisdiction to ascertain whether an appellant who plea-bargained is permitted to appeal by Rule 25.2(a), must dismiss a prohibited appeal without further action, regardless of the basis for the appeal.").
Conclusion
For the foregoing reasons, we grant the State's motion and dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any other pending motions as moot.
PER CURIAM Panel consists of Chief Justice Radack and Justices Kelly and Goodman. Do not publish. TEX. R. APP. P. 47.2(b).