Ex Parte Avery Cato v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00730-CR

Ex parte Avery Cato

FROM THE 453RD DISTRICT COURT OF HAYS COUNTY NO. CR-23-5794-D-HC-1, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM Appellant Avery Cato has filed a notice of appeal from the trial court’s denial of his pro se pretrial application for writ of habeas corpus. The clerk’s record filed in this cause contains no signed written order, only a docket sheet with the November 4, 2024 entry: “D’s writ of habeas corpus is denied.” See Dewalt v. State, 417 S.W.3d 678, 685 n.32 (Tex. App.—Austin 2013, pet. ref’d) (recognizing that docket sheet entries do not qualify as appealable orders); State v. Cox, 235 S.W.3d 283, 285 (Tex. App.—Fort Worth 2007, no pet.) (“It is well settled that a docket sheet entry is not an order.”). On December 6, 2024, we requested that the trial court file a supplemental clerk’s record containing its order denying appellant’s habeas application. However, the supplemental clerk’s record filed on December 11, 2024 contained only a copy of the docket sheet.

“A written and signed appealable order is a prerequisite to invoking this Court’s appellate jurisdiction.” Dewalt, 417 S.W.3d at 685 n.32; see Tex. R. App. P. 26.2(a)(1); State

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v. Rosenbaum, 818 S.W.2d 398, 402 (Tex. Crim. App. 1991); Ortiz v. State, 299 S.W.3d 930, 933 (Tex. App.—Amarillo 2009, no pet.); Cox, 235 S.W.3d at 285. The lack of a signed written order is curable: we treat the notice of appeal as prematurely filed, abate the appeal, and remand the case to the trial court for preparation of an appealable order. Dewalt, 417 S.W.3d at 685 n.32 (citing Tex. R. App. P. 27.1(b); State v. Rollins, 4 S.W.3d 453, 454 & n.1 (Tex. App.—Austin 1999, no pet.)).

Accordingly, we abate this appeal and remand the cause to the trial court for entry of a signed written order on appellant’s application for writ of habeas corpus. See Tex. R. App. P. 44.4(b) (requiring appellate court to direct trial court to correct remediable error that prevents proper presentation of appeal). A supplemental clerk’s record containing the signed order shall be prepared and filed with this Court no later than January 17, 2025. See Tex. R. App. P. 34.5(c)(2).

It is ordered on December 31, 2024.

Before Justices Baker, Smith, and Theofanis Abated and Remanded Filed: December 31, 2024 Do Not Publish