John Phillip Bender v. the State of Texas ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00019-CR
NO. 03-23-00020-CR
John Phillip Bender, Appellant
v.
The State of Texas, Appellee
FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-08-904109, THE HONORABLE CHANTAL ELDRIDGE, JUDGE PRESIDING
MEMORANDUM OPINION
In 2009, a jury found John Phillip Bender guilty of theft and misapplication of
fiduciary property, and Bender was sentenced to twenty years’ imprisonment for each count. See
Tex. Penal Code §§ 12.32, 31.03, 32.45. This Court affirmed the judgments of conviction. See
Bender v. State, No. 03-09-00652-CR, 2011 WL 1561994, at *1, *12 (Tex. App.—Austin Apr.
19, 2011, pet. ref’d) (mem. op., not designated for publication). In November 2022, Bender filed
a pro se motion for judgments nunc pro tunc. See Blanton v. State, 369 S.W.3d 894, 897-98
(Tex. Crim. App. 2012) (explaining that purpose of nunc pro tunc judgment is to allow
correction of clerical errors when there is discrepancy between judgment pronounced in court
and judgment reflected in record). The trial court denied the motion, and Bender has filed a
notice of appeal from the trial court’s order.
In order for an appellate court to have jurisdiction over an appeal, the appeal must
be authorized by law. See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008). For
criminal cases, an appeal is authorized only when a trial court “enters a judgment of guilt or
other appealable order.” Tex. R. App P 25.2(a)(2); see Tex. Code Crim. Proc. art. 44.02. An
order denying a judgment nunc pro tunc does not result in a new judgment, and no statute vests
appellate courts with jurisdiction over an appeal from an order denying a request for a judgment
nunc pro tunc. Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. dism’d); see
Abbott, 271 S.W.3d at 697; see also Gomez v. State, No. 03-20-00460-CR, 2020 WL 6018570,
at *1 (Tex. App.—Austin Oct. 6, 2020, no pet.) (mem. op., not designated for publication)
(dismissing appeal of denial of motion for judgment nunc pro tunc); McIntosh v. State,
110 S.W.3d 51, 52 (Tex. App.—Waco 2002, order) (explaining that defendant has right to appeal
from rulings other than final judgment of conviction “only when ‘expressly granted by law’”
(quoting Benford v. State, 994 S.W.2d 404, 409 (Tex. App.—Waco 1999, no pet.))).
Accordingly, we dismiss these appeals for want of jurisdiction.
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Kelly, and Smith
Dismissed for Want of Jurisdiction
Filed: February 10, 2023
Do Not Publish
2