PATE v. STATE

Full title: CHEYENNE PATE, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 10, 2010

No. 10-09-00360-CR (Tex. App. Mar. 10, 2010)

Opinion

No. 10-09-00360-CR

Opinion delivered and filed March 10, 2010. DO NOT PUBLISH.

Appealed from the 77th District Court Limestone County, Texas Trial Court No. 8660-A-1. Appeal abated.

Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS, (Chief Justice Gray dissenting).

ABATEMENT ORDER

PER CURIAM.

The trial court memorialized its denial of Cheyenne Pate's motion for postconviction DNA testing by a docket entry. Because this docket entry does not constitute an appealable order, Pate's notice of appeal is premature, and we will abate this appeal for entry of a written order and a certification of the defendant's right of appeal. The time to perfect an appeal in such a case runs from the date "the trial court enters an appealable order." TEX. R. APP. P. 26.2(a)(1). A court "enters an appealable order" in this context by signing a written order memorializing its ruling. See State v. Shaw, 4 S.W.3d 875, 877-78 (Tex. App.-Dallas 1999, no pet.); State v. Acosta, 948 S.W.2d 555, 556 (Tex. App.-Waco, order) (per curiam). A docket sheet entry does not constitute an appealable order. State v. Garza, 931 S.W.2d 560, 562 (Tex. Crim. App. 1996); State v. Cox, 235 S.W.3d 283, 285 (Tex. App.-Fort Worth 2007, no pet.); Shaw, 4 S.W.3d at 878. Because there is no written order, Pate's notice of appeal is premature. See TEX. R. APP. P. 27.1(b); State v. Brown, 187 S.W.3d 839, 840 (Tex. App.-Waco 2006, order) (per curiam). Nevertheless, it appears that the trial court intended to render an appealable order. Therefore, we abate this cause to the trial court for further consideration. See Brown, 187 S.W.3d at 840. If the court intended to render an appealable order, then it should sign and enter an appropriate written order to effectuate its intent. Id. In addition, we note that no certification of the defendant's right of appeal is included in the clerk's record. Rule of Appellate Procedure 25.2(a)(2) provides in pertinent part, "The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order." TEX. R. APP. P. 25.2(a)(2) (emphasis added). Subsection (d) of the same rule then provides in pertinent part:

The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.

Id. 25.2(d). Therefore, if the trial court intended to render an appealable order, then it must also sign and enter a certification of the defendant's right of appeal. See 25.2(a)(2), (d), 34.5(c)(2). The trial court shall, within twenty-one days after the date of this Order: (1) conduct a hearing if necessary; (2) make and sign appropriate orders and a certification of the defendant's right of appeal, if applicable; and (3) deliver any such signed documents to the trial court clerk. See Brown, 187 S.W.3d at 840-41. The trial court clerk shall: (1) prepare a supplemental clerk's record containing all orders and any certification of the defendant's right of appeal which the trial court renders or makes; and (2) file the supplemental clerk's record with the Clerk of this Court within thirty days after the date of this Order. Id.

DISSENT TO ABATEMENT ORDER

TOM GRAY, Chief Justice.

For the reasons expressed in Mullins v. Ortiz, No. 10-08-00225-CV, 2009 Tex. App. Lexis 3578 (Tex. App.-Waco April 29, 2009, order) (Gray, C.J. dissenting), I dissent. Specifically, having determined that we have no jurisdiction, we have no authority to render any type order other than a dismissal. The method by which we can properly proceed is a letter that puts the parties and the trial court on notice of the lack of jurisdiction and the consequences thereof if not corrected. What follows is the letter that I believe is appropriate:

Pursuant to Rule 44.3 of the Texas Rules of Appellate Procedure, you are notified that this appeal is subject to dismissal for want of jurisdiction because it appears there is no signed order from which to appeal. See Tex. R. App. P. 26.2(a)(1) ("notice of appeal must be filed. . . after the day the trial court enters an appealable order. . . ").

Therefore, the Court will dismiss this appeal unless, within 21 days of the date of this letter, a response is filed showing grounds for continuing the appeal.

Further, rule 25.2 of the Texas Rules of Appellate Procedure provides that a "trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order." Tex. R. App. P. 25.2(a)(2) (emphasis added). There is no certification of the defendant's right of appeal in the record.

Subject to the Court's determination of its jurisdiction, the Court will dismiss this appeal unless, within 28 days of the date of this letter, a certification showing the defendant's right of appeal is made a part of the record and simultaneously presented to this Court.

I recognize that either the order or notice may result in the parties taking the same corrective action. But we have authority to do one and not the other. Because the Court chooses to render an order without jurisdiction, I respectfully dissent.