EX PARTE NII OTABIL NELSON v. <<

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Court of Appeals of Texas, Houston (1st Dist.).

EX PARTE NII-OTABIL NELSON

NO. 01-17-00152-CR

Decided: March 28, 2017

Panel consists of Justices Jennings, Higley, and Massengale.

MEMORANDUM OPINION

Appellant, Nii-Otabil Nelson, proceeding pro se, attempts to appeal from the trial court's order, signed on August 10, 2016, denying his second application for a writ of habeas corpus, filed under article 11.072 of the Texas Code of Criminal Procedure, by filing a notice of appeal on December 27, 2016. We dismiss this appeal for want of jurisdiction.

On August 17, 2016, Nelson, through habeas counsel, served this second article 11.072 habeas application in the trial court, which was assigned to the underlying trial court cause number 1372073-B.1 Nelson alleges in this second habeas application, entitled “Second Actual Innocence Application for Writ of Habeas Corpus,” that he is actually innocent of the class A misdemeanor charge of assault—bodily injury, for which he had pleaded no contest to in 2014, and was later placed on deferred adjudication in 2015.

After the State responded to Nelson's habeas application, the habeas court signed findings of fact, conclusions of law, and an order denying the habeas application on August 10, 2016.2 The court's order concluded, among other things, that Nelson had failed to allege sufficient specific facts establishing that his current claims could not have been presented previously in his original habeas application.3 No timely motion for new trial or extension of time to file a notice of appeal was filed, making Nelson's notice of appeal due by September 9, 2016. See TEX. R. APP. P. 26.2(a)(1), 26.3.

On December 2, 2016, the district clerk filed a “Memorandum response to correspondence received” from Nelson's counsel on October 28, 2016, by stating that, on November 29, 2016, Nelson's second habeas “writ was previously denied a hearing on 08/10/16, thus closing the writ by the judge.” Nelson's pro se notice of appeal was not filed until December 27, 2016, seeking to appeal from the district clerk's memo response. On February 27, 2017, the trial court certified that this was not a plea-bargain case and that appellant had the right to appeal.4

Although this Court has appellate jurisdiction over orders denying criminal habeas applications seeking relief from an order or a judgment of conviction ordering community supervision, see TEX. CODE CRIM. PROC. ANN. art. 11.072, § 8, it is still necessary for the appellant to file a timely notice of appeal to invoke our jurisdiction. See TEX. R. APP. P. 25.2(a)(2), 26.2(a)(1), 31.1; cf. Denby v. State, 627 S.W.2d 435, 435 (Tex. App.—Houston [1st Dist.] 1981, orig. proceeding); see, e.g., Ex parte Alali, No. 01-15-00796-CR, 2015 WL 6949240, at *1 (Tex. App.—Houston [1st Dist.] Nov. 10, 2015, no pet.) (per curiam) (mem. op., not designated for publication) (dismissing for want of jurisdiction because appeal was untimely from order denying habeas application). A criminal defendant's notice of appeal must be filed within thirty days after the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order, if the defendant has not filed a motion for new trial. See TEX. R. APP. P. 26.2(a)(1); see also State v. Sanavongxay, 407 S.W.3d 252, 258–59 (Tex. Crim. App. 2012) (holding that “entered by the court,” under Texas Code of Criminal Procedure article 44.01(d), “encompasses the signing of an order by the trial judge”) (citation omitted).

A notice of appeal that complies with the requirements of rule 26 is essential to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. See Slaton, 981 S.W.2d at 210.

Although the district clerk's docket sheet entry lists the order on appeal as the memo response made by the district clerk on November 29, 2016, that memo was not an order signed by the court. See, e.g., Ford v. State, No. 13-14-00466-CV, 2014 WL 6602307, at *1 (Tex. App.—Corpus Christi Nov. 20, 2014, no pet.) (per curiam) (mem. op., not designated for publication) (noting that “[a] docket sheet entry is a memorandum made for the convenience of the trial court and the court clerk” and “may not take the place of a separate order, and a trial court's oral pronouncement is not appealable until a written order is signed”) (citing, inter alia, Sanavongxay, 407 S.W.3d at 258–59). The district clerk, not the trial court, signed the memo response on November 29, 2016. The only appealable order was signed by the trial court on August 10, 2016.

Here, Nelson's notice of appeal of the August 10, 2016 order denying his second habeas application was not filed until December 27, 2016, more than four months after the order was signed. See TEX. R. APP. P. 26.2(a)(1), 31.1. Thus, under these circumstances, we can take no action other than to dismiss this appeal for want of jurisdiction. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 526; Ex parte Alali, 2015 WL 6949240, at *2.

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.

FOOTNOTES

1.   In 2015, this Court affirmed the denial of Nelson's first article 11.072 habeas application, assigned to trial court cause number 1372073-A, which had challenged the same conviction challenged here, but alleged ineffectiveness of trial counsel. See Ex parte Nii-Otabil Nelson, No. 01-14-00924-CR, 2015 WL 3981577, at *6 (Tex. App.—Houston [1st Dist.] June 30, 2015, no pet.) (per curiam) (mem. op., not designated for publication).

2.   Although Nelson's habeas application contains a certificate of service indicating that it was served on August 17, 2016, the docket sheet in the clerk's record indicates that Nelson first appeared in court without counsel on June 29, 2016. The habeas application was not filed by the district clerk until October 28, 2016.

3.   See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 9(a) (West Supp. 2016).

4.   The district clerk did not assign this appeal to this Court until March 1, 2017, and lists the ruling on appeal as made on November 29, 2016. The district clerk also included an affidavit, signed on February 27, 2017, with the clerk's record explaining the delay by stating that, although the notice of appeal was filed on December 27, 2016, it was not turned in for processing by the district clerk's appellate division until February 24, 2017.

PER CURIAM