Gregorio Rodriguez v. State

Opinion

NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-0171-CR, 07-10-0172-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MARCH 15, 2011

GREGORIO RODRIGUEZ, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NOS. 2009-455,818, 2009-458,190, 2009-425,597,

2009-422,825; HONORABLE CECIL PURYEAR, JUDGE

Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J. 1

ORDER ON ABATEMENT AND REMAND

In these four cases, appellant Gregorio Rodriguez appeals his convictions on his

open pleas of guilty and resulting sentences. On our own motion, after examining the

records, we consider our jurisdiction. See State v. Roberts, 940 S.W.2d 655, 657

(Tex.Crim.App. 1996), overruled on other grounds, State v. Medrano, 67 S.W.3d 892,

901-03 (Tex.Crim.App. 2002) (appellate court may on its own motion address issue of

its jurisdiction).

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. The reporter’s record says sentence in each case was imposed in open court on

March 3, 2010. Docket sheet entries in each case appear to indicate sentencing

occurred on March 8. Our case numbers 07-10-0122-CR and 07-10-0123-CR were

misdemeanor convictions. The written judgments in these cases state “judgment

entered and sentence imposed on this 8th day of March, A.D. 2010.” Our case

numbers 07-10-0171-CR and 07-10-0172-CR were convictions for state jail felonies.

The written judgments in these cases state “date judgment entered: 3-8-10” and “date

sentence imposed/to commence” March 8, 2010. Also in case numbers 07-10-0171-CR

and 07-10-0172-CR a document entitled “waiver of constitutional rights, agreement to

stipulate, and judicial confession” indicates it was “sworn and subscribed” by appellant

before a deputy district clerk on “3-8-10.” Appellant filed a notice of appeal in each case

on April 6, 2010.

Our appellate jurisdiction is triggered through a timely notice of appeal. Olivo v.

State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996). In the absence of a motion for new

trial, Rule of Appellate Procedure 26.2(a)(1) requires a notice of appeal be filed within

30 days after the day sentence is imposed in open court. Tex. R. App. P. 26.2(a)(1).

The rules of appellate procedure provide for an extension of time to file the notice of

appeal if “such notice is filed within fifteen days after the last day allowed and within the

same period a motion is filed in the court of appeals reasonably explaining the need for

such extension.” Tex. R. App. P. 26.3. Both the notice of appeal and the motion for

extension of time must be filed within the time provided by the rules. See Slaton v.

State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam); Olivo, 918 S.W.2d at

522.

2 Here, the clerk’s records do not contain motions for new trial, nor did we receive

a motion for additional time to file a notice of appeal. It is therefore evident that

establishing the correct date sentence was imposed in open court is essential to

determining our jurisdiction.

Each case is therefore abated and remanded to the trial court. On proper notice,

the trial court shall convene an evidentiary hearing as soon as practicable to determine

the following:

(1) the correct date on which sentence was imposed in each case; and

(2) if that date was other than March 3, 2010, why the reporter’s record is

incorrect.

Following the hearing, the trial court shall prepare findings of fact and

conclusions of law regarding all matters it considered in conjunction with this order. The

hearing shall be transcribed and included in a supplemental reporter’s record. The trial

court’s findings of fact and conclusions of law as well as any orders made in compliance

with this order shall be included in supplemental clerk’s records, for each case. The

supplemental reporter’s record, and supplemental clerk’s records prepared in each

case, shall be filed with the clerk of this court on or before April 4, 2011. Should

additional time be needed to perform these tasks, the trial court may request same on

or before April 4, 2011.

It is so ordered.

Per Curiam

Do not publish.