Opinion
No. 05-17-00030-CR
03-28-2017
VERA ELIZABETH GUTHRIE-NAIL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-80635-2012
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Vera Elizabeth Guthrie-Nail appeals the trial court's oral ruling and docket entry reaffirming its judgment nunc pro tunc following a remand from the court of criminal appeals. We dismiss the appeal for want of jurisdiction.
Appellant pleaded guilty to conspiracy to commit capital murder and was sentenced to fifty years' imprisonment. The original judgment did not reflect a finding of use of a deadly weapon. Without notice to appellant or a hearing, the trial court entered a judgment nunc pro tunc making a deadly weapon finding. Appellant appealed the judgment nunc pro tunc to this Court which affirmed the trial court's judgment. The court of criminal appeals reversed this Court's judgment on the ground appellant was entitled to a hearing before entry of an adverse judgment nunc pro tunc, and the record was not clear whether the trial court had made a deadly weapon finding at the time of trial. See Guthrie-Nail v. State, 506 S.W.3d 1, 7 (Tex. Crim. App. 2015). The court of criminal appeals remanded the case to the trial court so that the trial court could conduct a hearing to determine when the trial court had actually made the deadly weapon finding. Id.
On December 16, 2016, the trial court conducted the hearing mandated by the court of criminal appeals. The trial court explained on the record that it did not conduct a hearing before entering the judgment nunc pro tunc because it did not appreciate that the judgment's effect on appellant's parole eligibility would trigger the need to conduct a hearing. The trial court further explained that by finding appellant "guilty exactly as charged in the indictment," it thought it was making a deadly weapon finding. The trial court stated it intended to enter a deadly weapon finding at the time it accepted appellant's plea bargain and found her guilty. As the trial court judge further noted:
I knew I had the discretion to not enter [a deadly weapon finding], but there was no way I was going to exercise that in favor of [appellant]. It was a brutal killing. It was an unnecessary killing. There's no question a firearm was used, and I certainly intended to make that finding, absent it being waived and there was no evidence that it was waived.The trial court concluded by stating "The affirmative finding stands, as far as I am concerned, and it will stand until the Court of Criminal Appeals tells me to take it off."
Appellant filed her notice of appeal to appeal "the court's order entered on December 16, 2016" in which the trial court "entered an affirmative finding of a deadly weapon. . . ." After receiving information from the trial court clerk that the trial court had not entered a written order, the Court requested letter briefs from the parties regarding the basis of the Court's jurisdiction. Neither party responded. By order dated March 2, 2017, the Court ordered the trial court clerk to file either a copy of the trial court's written order making an affirmative finding of a deadly weapon or else written verification that no such written order was in the clerk's possession. In response, the Court received verification from the district clerk that their records show the trial court made a general docket entry on December 16, 2016 but there was no written order. After learning of the Court's inquiry about an order, appellant's counsel from her earlier appeal filed a letter with the Court explaining that the trial court was allowing him to continue representing appellant and contending the appeal should proceed because the trial court ratified the judgment nunc pro tunc. Counsel cited no authority that would empower this Court to assert jurisdiction over the case grounded on a docket entry and oral ratification of a pre-existing judgment.
Under rule 26.2 of the rules of appellate procedure, a notice of appeal in a criminal case must be filed within thirty days of the day the trial court pronounces a sentence or enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). A court of appeals has no jurisdiction over an appeal absent a written judgment or order. See Nikrasch v. State, 698 S.W.2d 443, 450 (Tex. App.—Dallas 1985, no pet.). A docket sheet entry does not constitute an appealable order. See State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.—Dallas 1999, no pet.). Because the trial court has not entered an appealable order, appellant's notice of appeal does not confer jurisdiction upon us.
We dismiss the appeal for want of jurisdiction.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not publish
TEX. R. APP. P. 47 170030F.U05
JUDGMENT
On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-80635-2012.
Opinion delivered by Justice Lang-Miers. Justices Francis and Whitehill participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered this 28th day of March, 2017.