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Melvin Thomas Walton v. State ( 2008 )


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  • In The

    Court of Appeals

    Sixth Appellate District of Texas at Texarkana



    ______________________________


    No. 06-07-00178-CR

    ______________________________




    MELVIN THOMAS WALTON, Appellant


    V.


    THE STATE OF TEXAS, Appellee




    On Appeal from the 124th Judicial District Court

    Gregg County, Texas

    Trial Court No. 27295-B








    Before Morriss, C.J., Carter and Moseley, JJ.

    Memorandum Opinion by Chief Justice Morriss


    MEMORANDUM OPINION

    Melvin Thomas Walton appeals from his conviction on his plea of guilty to the offense of forgery. See Tex. Penal Code Ann. § 32.21(d) (Vernon Supp. 2007). The sentence was imposed September 27, 2007. Walton filed a notice of appeal November 1, 2007.

    According to Rule 26.2, Walton had thirty days after the day sentence was imposed to file a notice of appeal, or timely file a motion for new trial and thereby extend his time to file a notice of appeal. See Tex. R. App. P. 26.2(a)(1), 21.4. Walton's motion for new trial was also filed November 1, 2007, and therefore was not timely. Walton had until October 29, 2007, to file a notice of appeal. (1) No motion for extension of time to file his notice of appeal was filed. See Tex. R. App. P. 26.3. (2) Hence, this appeal is untimely, and we are without jurisdiction to hear this case.







    We dismiss this appeal for want of jurisdiction.





    Josh R. Morriss, III

    Chief Justice



    Date Submitted: January 8, 2008

    Date Decided: January 9, 2008



    Do Not Publish











    OPINION ON REHEARING

    Melvin Thomas Walton has filed a motion for rehearing from our dismissal for want of jurisdiction. We dismissed the appeal because the clerk's record initially demonstrated to us that Walton's notice of appeal was untimely filed. We now grant Walton's motion for rehearing and reinstate his appeal, because a judgment nunc pro tunc has been entered making the appeal timely.

    Before explaining that resolution based on the addition to the record before us, we dispel some erroneous claims made in Walton's motion: that a docket entry controls a conflicting judgment concerning the date of sentencing; that, in Walton's absence, no formal sentence was imposed; and that our initial opinion issued prematurely, before the clerk's record was filed with this Court.

    The docket entry: In his motion, Walton states that the date reflected on the trial court's docket sheet as the date sentencing took place (October 29, 2007) is the date we should have used in computing the time for filing the notice of appeal, rather than the date sentence was imposed as initially reflected on the trial court's judgment (September 27, 2007). A docket sheet, however, is not part of the official trial court record and is, therefore, not proper evidence on which an appellant may rely. Cooks v. State, No. 05-02-00485-CR, 2003 WL 203513, at *2 (Tex. App.--Dallas Jan. 31, 2003, pet. ref'd) (not designated for publication); see Pifer v. State, 893 S.W.2d 109, 111 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd).

    Appellate courts are skeptical of docket sheet notations. See Garcia v. State, 45 S.W.3d 733, 736 (Tex. App.--Corpus Christi 2001, no pet.); State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.--Dallas 1999, no pet.); Rodriguez v. State, 834 S.W.2d 592, 595 (Tex. App.--Houston [1st Dist.]), pet. granted in part & ref'd in part; remanded in part on other grounds, 844 S.W.2d 744 (Tex. Crim. App. 1992). The record--in this case, the judgment--not the docket entry, is the authoritative evidence upon which the parties must rely on appeal. Bell v. State, 734 S.W.2d 83, 84 (Tex. App.--Austin 1987, no pet.).

    Focusing on the judgment, as we must, we note that the official record before us on appeal reflects an initial judgment indicating that sentence was imposed September 27, 2007. The date sentence is imposed in a criminal case is the date from which the time table begins to run for the filing of a notice of appeal. Tex. R. App. P. 26.2. Had that been the end of the story, our initial opinion would have been accurate in concluding that Walton's appeal was untimely.

    Sentencing in absentia: Walton's motion also contends that, because he was sentenced in absentia on September 27, there was no formal sentence imposed, citing Casias v. State, 503 S.W.2d 262 (Tex. Crim. App. 1973). (3) We disagree. In all prosecutions for felonies, the defendant must be personally present at the trial, and he or she must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself or herself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006). When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he or she was present during the whole trial. Id.

    Initial opinion not premature: Walton also erroneously indicates in his motion for rehearing that the clerk's record in this case had not been filed with our Court at the time we dismissed the case. The official record from the district clerk was received in this Court December 21, 2007; our opinion issued January 9, 2008. (4)  

    Judgment nunc pro tunc: We are now in receipt of the supplemental clerk's record containing a judgment nunc pro tunc entered by the trial court, reflecting that sentence was imposed in this case October 29, 2007, rather than September 27, 2007, as initially stated. Walton's notice of appeal was filed November 1, and is therefore timely.

    Because the judgment nunc pro tunc makes Walton's notice of appeal timely, we reinstate the appeal on the docket of this Court.











    Josh R. Morriss, III

    Chief Justice



    Date: February 21, 2008

    1. Because the actual due date, October 27, 2007, was a Saturday, Walton had until Monday, October 29, 2007, to file his notice of appeal. See Tex. R. App. P. 4.1.

    2. While it is true the Texas Supreme Court interprets Rule 26.3 liberally, implying a motion for extension where a notice of appeal is filed within the fifteen days immediately following the notice's due date (see Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)), the Texas Court of Criminal Appeals interprets the rule strictly, requiring a notice of appeal and a motion for extension within the fifteen-day period. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522-26 (Tex. Crim. App. 1996).

    3. See Tex. Code Crim. Proc. Ann. arts. 42.02, 42.14 (Vernon 2006).

    4.

    On receipt of our opinion, David J. Ingram, counsel for appellant, telephoned our deputy clerk in charge of criminal cases, inquiring into the reasons of the Court in dismissing the case. We take this opportunity to remind Mr. Ingram that he is expected to communicate with this Court and its staff in a respectful, professional, and courteous manner. Standards for Appellate Conduct, Lawyers' Duties to the Court 8 ("Counsel will be civil and respectful in all communications with the judges and staff.").