in Re: Cleveland Nixon ( 2015 )

Writ of Mandamus is Conditionally Granted; Opinion Filed March 25, 2015.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-15-00263-CV
IN RE CLEVELAND NIXON, Relator
Original Proceeding from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause No. F1121243X
MEMORANDUM OPINION
Before Justices Bridges, Stoddart, and Whitehill
Opinion by Justice Stoddart
Relator filed this petition for writ of mandamus requesting that the Court order the trial
court to sign a written order on his motion for bond pending appeal, which the trial court orally
denied. 1 The denial of bail is reflected in a docket entry and a hearing transcript attached to the
petition for writ of mandamus, but the State in its response to the petition agrees that no written
order has been signed by the trial court. The State agrees that mandamus is appropriate in this
case. We conditionally grant the petition.
A written order is a necessary for a party to perfect appeal from a trial court’s order. See,
e.g., State v. Shaw, 4 S.W.3d 875, 878 (Tex. App—Dallas 1999, no pet.). Under rule 26.2 of the
rules of appellate procedure, a notice of appeal in a criminal case must be filed within 30 days of
the day the trial court “enters” an appealable order. TEX. R. APP. P. 26.2(a)(1). The Court of
1
A defendant may appeal the trial court’s denial of bail pending appeal. Ortiz v. State, 299 S.W.3d 930, 932-33 (Tex. App —Amarillo
2009, no pet.). An appeal from denial of bail is separate from the appeal of the criminal conviction. Id.
Criminal Appeals has interpreted “entry” of an order or judgment as encompassing the signing of
an order by the trial judge. State v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991).
A court may only act by orders duly recorded in its minutes. Shaw, 4 S.W.3d at 878. An order is
recorded in the trial court’s minutes when it is reduced to writing, signed by the trial judge, and
entered in the record. In re Fuentes, 960 S.W.2d 261, 264 (Tex. App.—Corpus Christi 1997,
orig. proceeding) (citing Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719,
723 (Tex. App.—Dallas 1988, no writ)).
A docket sheet entry is not a substitute for an order. As this Court pointed out roughly
fifteen years ago, neither an oral order nor a docket entry provide a substitute for a written order
signed by the trial court:
We first address, for education of the bench and bar, the need for a written order
and the delay caused by the lack of a written order. This Court repeatedly receives
appeals and original proceedings wherein the order or judgment complained of is
only memorialized in a docket sheet entry. Docket sheet entries, except for a few
limited circumstances, are not a substitute for written orders and judgments.
In re Beck, 26 S.W.3d 553, 555 (Tex. App.—Dallas 2000, orig. proceeding), opinion
withdrawn on other grounds, No. 05-00-01100-CV, 2001 WL 21492 (Tex. App.—Dallas Jan.
10, 2001); see also Ferguson v. State, 367 S.W.2d 695, 696 (Tex. Crim. App. 1963); Utilities
Pipeline Co., 760 S.W.2d at 723; Fuentes, 960 S.W.2d at 264; Pifer v. State, 893 S.W.2d 109,
111 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd). Docket sheet entries are not part of the
record because they are inherently unreliable, lacking the formality of orders and judgments. See
Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 & n. 2 (Tex. App.—
Dallas 1986, no writ). A docket sheet entry is a memorandum made for the convenience of the
trial court and clerk. Energo Int'l Corp., 722 S.W.2d at 151.
Mandamus is appropriate in a criminal case if the relator shows that he has no other
adequate legal remedy and the act sought to be compelled is purely ministerial. State of Tex. ex
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rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180–81 (Tex. Crim. App. 2001)
(orig. proceeding); In re Watkins, 315 S.W.3d 907, 908 (Tex. App.–Dallas 2010, orig.
proceeding). Once a trial court pronounces its judgment or declares the content of its order, the
act of committing the judgment or order to writing and signing it is a ministerial act. See, e.g.,
Greene v. State, 324 S.W.3d 276, 282 (Tex. App.—Austin 2010, no pet.); Alcantar v. Oklahoma
Nat. Bank, 47 S.W.3d 815, 821 (Tex. App.—Fort Worth 2001, no writ); Nicot-Bardeguez v.
Fashing, 718 S.W.2d 36, 38 (Tex. App.—El Paso 1986, orig. proceeding). When a trial court
refuses to sign a written order memorializing a ruling and the existence of such a written order is
a necessary pre-condition for a party to be able to exercise a right to appeal, the proper way to
seek relief is through mandamus. See State v. Sanavongxay, 407 S.W.3d 252, 259 n.9 (Tex.
Crim. App. 2012).
Because we conclude the trial court has a ministerial duty to sign a written order so that
the relator can perfect his appeal from the denial of pre-trial bail, we conditionally grant the
petition for writ of mandamus. A writ will issue only in the event the trial court fails to sign a
written order memorializing its ruling on relator’s motion for bond pending appeal.
/ Craig Stoddart/
CRAIG STODDART
JUSTICE
150263F.P05
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