DONALD GENE BLANTON v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

DONALD GENE BLANTON, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-00758-CR

Decided: February 18, 2010

Before Justices O'Neill, Lang, and Myers

MEMORANDUM OPINION

Donald Gene Blanton appeals his conviction for burglary of a habitation.   In accordance with a plea bargain agreement, the trial court assessed punishment at seven years' confinement.   Pursuant to the Court's request, the parties have filed jurisdictional briefs.1  After reviewing the jurisdictional briefs, we dismiss the appeal.

The record reflects that on July 13, 1987, in cause no. 15,184, appellant entered a negotiated plea of guilty to the offense of burglary of a building and was placed upon deferred adjudication probation for five years.   Shortly thereafter, in the present case, cause no. 15,189, appellant was charged with committing a burglary of a habitation.   Citing the new offense, the State filed a motion to proceed with adjudication of guilt in cause no. 15,184.

In cause no. 15,184, appellant entered a plea of true to the State's allegations in the motion to proceed.   In cause no. 15,189, appellant entered a negotiated guilty plea for a seven-year sentence and $500 in restitution.   The trial court adjudicated appellant guilty in cause no. 15,184 and accepted his guilty plea in cause no. 15,189.   The trial court assessed punishment at seven years' confinement in each case.   The trial court filed written judgments in the two cases on July 23, 1987.   On August 1, 1988, the trial court entered a nunc pro tunc judgment in cause no. 15,189 to add the $500 restitution appellant agreed to in his plea bargain but that was not included in the original judgment.

On March 3, 2009, appellant filed in cause no. 15,189 a motion for judgment nunc pro tunc.   In his motion, appellant related the facts of his conviction for burglary of a building in cause no. 15,184.   He alleged to the trial court that he had been convicted of burglary of a building in cause no. 15,189 and he attached as exhibits copies of the written judgment and the order adjudicating him guilty in cause no. 15,184, with the tops of the documents showing the case number cut off.   He also attached as exhibits copies of his plea agreement and the 1988 judgment nunc pro tunc entered in cause no. 15,189.   Appellant represented to the trial court that he had only been convicted of one burglary of a building and that the exhibit documents all related to the conviction in cause no. 15,189.   Appellant alleged that the 1988 judgment nunc pro tunc had incorrectly changed his offense from burglary of a building to burglary of a habitation and he requested entry of a new judgment nunc pro tunc that would reflect a conviction in cause no. 15,189 for burglary of a building.

On March 20, 2009, the trial court signed a nunc pro tunc judgment changing appellant's conviction in cause no. 15,189 from burglary of a habitation to burglary of a building.   On June 12, 2009, the trial court entered another nunc pro tunc judgment changing appellant's conviction in cause no. 15,189 back to burglary of a habitation.   In the record, there is an unsigned explanatory letter, apparently transmitted from the district clerk to appellant.   The body of the letter states in its entirety:

In July 1987 2 charges were filed against you-15184 burglary of a building and 15189 burglary of a habitation. 15184 resulted in probation which was then revoked. 15189 resulted in a 7 year sentence.

At some point the two numbers were confused and a correcting order was issued in 15189.   Additional paper work from you led us to double check and the error was discovered.   A new correcting order (which traces the original order) is enclosed.

On June 23, 2009, appellant filed a notice of appeal of the trial court's June 12, 2009 nunc pro tunc judgment.   The trial court has filed a certification with this Court showing appellant has no right to appeal because his conviction arises from a plea bargain.

In his brief, appellant contends the Court has jurisdiction over the appeal pursuant to rule of appellate procedure 23 because he is attempting to correct an error in the trial court's 1988 nunc pro tunc judgment.   We note, initially, that appellant's notice of appeal purports to appeal only the June 12, 2009 nunc pro tunc judgment.   Moreover, rule 23 addresses the power of the trial court to correct judgment errors.   See Tex.R.App. P. 23.1. Rule 23 does not grant any additional jurisdiction for this Court to review the 1988 nunc pro tunc proceeding.   See Rodarte v. State, 860 S.W.2d 108, 109 & n.1 (Tex.Crim.App.1993) (appellate deadlines run from date sentence is imposed rather than date written judgment is entered).

In his supplemental briefs, addressing the State's contention that the trial court's certification showing appellant has no right of appeal deprives the Court of jurisdiction, appellant contends rule 25.2 does not apply to his appeal because his claim contesting a nunc pro tunc judgment is unrelated to a claim regarding the propriety of the conviction.   Because we will conclude appellant's notice of appeal is untimely, we need not address the scope of appellant's appeal rights in the face of the trial court's rule 25.2 certification.

Citing Homan v. Hughes, appellant contends he has a right to appeal the nunc pro tunc judgment because he is not contesting the underlying conviction, his constitutional rights were violated, and the nunc pro tunc order was entered ex parte.   Appellant ignores, however, that Homan is a mandamus case arising from the trial court's signing of an order refusing the defendant permission to appeal its nunc pro tunc judgment despite the filing of a timely notice of appeal.   See Homan v. Hughes, 708 S.W.2d 449, 452-54 (Tex.Crim.App.1986).   We conclude Homan, addressing a completely different facts and procedural posture, is distinguishable.

Finally, appellant contends the trial court's June 12, 2009 nunc pro tunc judgment is void because it purports to correct a judicial error rather than a clerical error.   We disagree.   The purpose of a nunc pro tunc judgment is to enter a written judgment that accurately reflects the judgment the trial court actually made at the time of the proceedings.   See Ex parte Dopps, 723 S.W.2d 669, 670 (Tex.Crim.App.1986) (per curiam).   Modifying the judgment to reflect the correct offense a defendant was convicted of, as in the present case, is a proper subject for a nunc pro tunc judgment.   See Hughes v. State, 493 S.W.2d 166, 170 (Tex.Crim.App.1973).

The trial court imposed appellant's sentence in this case on July 23, 1987.   Our record does not show appellant filed a motion for new trial.   Thus, appellant's notice of appeal was due on or before August 23, 1987.   See Tex.R.App. P. 26.2(a)(1).   The clerk's record in this case shows appellant filed his notice of appeal on June 23, 2009.

Because appellant failed to file a timely notice of appeal, we have no jurisdiction over the appeal.   See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App.1998) (per curiam);  Rodarte, 860 S.W.2d at 109 & n.1. We deny appellant's pending pro se motions without considering their merits.

We dismiss the appeal for want of jurisdiction.

FOOTNOTES

FN1. We are treating as appellant's jurisdictional brief his November 30, 2009 Motion To Show Right To Appeal Judgment Nunc Pro Tunc, January 4, 2010 Supplemental Record To The State's Jurisdictional Brief, January 4, 2010 Request For Judicial Notice To The State's Jurisdictional Brief, and January 11, 2010 Request For Judicial Notice To The State's Jurisdictional Brief..  FN1. We are treating as appellant's jurisdictional brief his November 30, 2009 Motion To Show Right To Appeal Judgment Nunc Pro Tunc, January 4, 2010 Supplemental Record To The State's Jurisdictional Brief, January 4, 2010 Request For Judicial Notice To The State's Jurisdictional Brief, and January 11, 2010 Request For Judicial Notice To The State's Jurisdictional Brief.

PER CURIAM

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