Henery v. State

Full title: PETER HENERY, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Feb 24, 2011

No. 14-09-00996-CR (Tex. App. Feb. 24, 2011)

Opinion

No. 14-09-00996-CR

Opinion filed February 24, 2011. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).

On Appeal from the County Criminal Court at Law No. 4, Harris County, Texas, Trial Court Cause No. 1634586.

Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER. (BOYCE, J., dissenting).

MAJORITY MEMORANDUM OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Peter Henery, was charged by information for the misdemeanor offense of indecent exposure. Appellant filed a motion to quash the information, which the trial court orally denied following a hearing. Nevertheless, the trial court signed an order granting appellant's motion to quash and striking the information. Six days later, appellant pleaded "guilty" to the charged offense pursuant to a plea bargain. The trial court accepted the plea and sentenced appellant to sixty days' confinement in county jail. In his first issue, appellant contends the trial court lacked jurisdiction to accept his guilty plea, sentence him, and sign the judgment because the case was dismissed once the court signed the order quashing the information. We agree. Once an information is quashed and stricken, the trial court no longer has jurisdiction over the case and thus has no authority to conduct further proceedings. See Garcia v. Dial, 596 S.W.2d 524, 528 (Tex. Crim. App. 1980); Prochazka v. State, 878 S.W.2d 230, 232 (Tex. App.-Corpus Christi 1994, no pet.). We acknowledge that the trial court orally denied the motion to quash before signing the order granting the motion. However, the State did not file a motion nunc pro tunc requesting that the trial court determine whether it signed the order as the result of clerical or judicial error. Further, the State has not requested that we abate this case and order the trial court to conduct a nunc pro tunc hearing. Accordingly, on the record before us, the information has been quashed and stricken and no case is pending against appellant. We hold that the trial court's judgment is void for lack of jurisdiction. The trial court's judgment is reversed, and we remand with orders for the trial court to dismiss this cause.¹

1 We need not address appellant's remaining appellate issue.

WILLIAM J. BOYCE, Justice.

DISSENTING MEMORANDUM OPINION

The written order granting appellant's motion to quash contradicts the trial court's oral denial. This circumstance establishes at least a plausible basis for contending that the written order resulted from a clerical error. We have authority to abate this appeal and remand for the trial court to conduct a nunc pro tunc hearing and determine whether the written order was signed as the result of a clerical error. See Rodriguez v. State, 42 S.W.3d 181, 186-87 (Tex. App.-Corpus Christi 2001, no pet.); Smith v. State, 801 S.W.2d 629, 633 (Tex. App.-Dallas 1991, no pet.). We should follow this procedure here regardless of whether the State asks us to do so. Accordingly, I respectfully dissent from this court's judgment reversing the trial court's judgment and remanding with instructions to dismiss the cause.