Opinion
05-23-01316-CR
03-15-2024
SHEDRICK THORNTON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish JUSTICE Tex.R.App.P. 47.2(b)
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F19-70256
Before Partida-Kipness, Nowell, and Smith, Justices.
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE
Appellant appeals the supposed trial court nunc pro tunc judgment entered "before 'December 21, 2023.'" Although appellant had moved for judgment nunc pro tunc, the record does not show the trial court ruled on the motion. Even if the trial court had ruled on the motion, appellant's statements indicate the trial court denied the motion, and the denial of a motion for judgment nunc pro tunc is not an appealable order. Therefore, we have no jurisdiction over this appeal.
On August 8, 2023, appellant pleaded guilty to the offense of violation of protective order by committing an assault or the offense of stalking. Pursuant to a plea bargain, appellant was sentenced to five years' imprisonment. The judgment credited appellant with 559 days served in jail before trial, which is back to January 26, 2022.
Beginning in October 2023, appellant began filing motions for judgment nunc pro tunc asserting the pretrial jail time credited should have begun February 13, 2019, when, he asserts, a detainer was first issued for this case. A family member told appellant that a statement appeared on the district clerk's website about the motion: "case disposed on 8/8/23 - backtime credit is correct." Appellant appears to assert this statement constitutes a ruling on his motion for judgment nunc pro tunc, and he seeks to appeal that ruling.
The same entry appears in the index of the clerk's record on the entries for October 6, 2023, so the statement is before us.
We have no jurisdiction to entertain an appeal unless the trial court has entered a judgment or appealable order. See Tex. R. App. P. 25.2(b), 26.2(a)(1); State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012); Henderson v. State, 153 S.W.3d 735, 735-36 (Tex. App.-Dallas 2005, no pet.). The record does not show that the trial court made the determination that appellant's pretrial confinement for this case was correct. And there is no document signed by the trial court to that effect. See Sanavongxay, 407 S.W.3d at 259. Therefore, there is no judgment nunc pro tunc or other appealable order before us.
Even if the trial court had signed a written order stating "backtime credit is correct," the order would constitute a denial of a motion for judgment nunc pro tunc. The entry of a nunc pro tunc judgment is an appealable order. Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). In contrast, the trial court's denial of relief or refusal to rule on a motion for judgment nunc pro tunc does not create an appealable order that may serve as a basis for appellate jurisdiction. See Desilets v. State, 495 S.W.3d 553, 554 (Tex. App.-Beaumont 2016, no pet.) (dismissing appeals from order denying request for judgments nunc pro tunc); Sanchez v. State, 112 S.W.3d 311, 311-312 (Tex. App.-Corpus Christi-Edinburg 2003, no pet.) (per curiam) ("We do not have jurisdiction over an appeal from an order denying a request for judgment nunc pro tunc to correct jail time credit.").
We conclude there is either no order before us on appellant's motion for judgment nunc pro tunc or that if an order exists, it is an order denying the motion, which is not an appealable order. Under either scenario, the record does not show we have jurisdiction.
We dismiss the appeal for want of jurisdiction.
This Court has stated in a similar case:
[I]f the trial court fails to act [on a motion for judgment nunc pro tunc seeking modification of the amount of back time], the denial of the back time credit may be challenged in one of two ways depending on the applicant's situation. If the denial keeps the applicant incarcerated beyond the time he was eligible for release, the applicant may challenge the denial by habeas corpus. See Ex parte Ybarra, [149 S.W.3d 147, 148 (Tex. Crim. App. 2004)]. If there is no assertion the denial is keeping the applicant incarcerated beyond his release date, he must challenge the trial court action by petition for writ of mandamus. See Ex parte Ybarra, 149 S.W.3d at 149; In re Daisy, 156 S.W.3d 922, 924 (Tex. App.-Dallas 2005, no pet.).Marshburn v. State, No. 05-07-00072-CR, 2007 WL 852883, at *1 (Tex. App.-Dallas Mar. 22, 2007, no pet.)
JUDGMENT
Based on the Court's opinion of this date, the appeal is DISMISSED for want of jurisdiction.