in Re Johnny Ray Abbott

• Court: Court of Appeals of Texas
• Decided: January 28, 2009
• Docket: 10-08-00424-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00424-CR

IN RE JOHNNY RAY ABBOTT

Original Proceeding

MEMORANDUM OPINION

Johnny Ray Abbott seeks a writ of mandamus compelling Respondent, the

Honorable Gene Knize, Judge of the 40th District Court of Ellis County, to grant his

motion for a nunc pro tunc order. However, because Respondent’s court does not

presently have jurisdiction in the underlying proceeding, Abbott’s request is premature

and will be denied.

Abbott was convicted of indecency of a child and sentenced to twenty years’

imprisonment. This Court affirmed the judgment of conviction but reversed that

portion of the judgment assessing punishment, and remanded the case to the trial court

for a new punishment hearing. See Abbott v. State, 196 S.W.3d 334, 349 (Tex. App.—

Waco 2006, pet. ref’d). On remand, a new jury assessed Abbott’s punishment at ten years’ imprisonment and recommended that Respondent suspend imposition of

sentence and place Abbott on community supervision. Respondent ordered Abbott to

serve 180 days in jail as a condition of community supervision. Respondent later

denied Abbott’s post-judgment motion to receive credit for the time he had served

during the pendency of his appeal, which was 740 days. See Abbott v. State, 245 S.W.3d

19, 20 (Tex. App.—Waco 2007), rev’d, No. PD-1816-07, 2008 Tex. Crim. App. LEXIS 856

(Tex. Crim. App. Sept. 10, 2008). This Court reversed Respondent’s order denying

Abbott’s motion for time credit and remanded the cause with instructions to give him

credit for the time he had served during the pendency of the appeal and “immediately

release” him. Id. at 23. The Court of Criminal Appeals reversed and remanded, holding

that this Court did not have appellate jurisdiction to address this sentencing issue

because there is not “any rule or any statutory or constitutional provision that would

authorize” such an appeal. Abbott, 2008 Tex. Crim. App. LEXIS 856, at *8.

Abbott filed a motion for rehearing in the Court of Criminal Appeals on

September 25. That motion was denied on November 7. The Court of Criminal

Appeals issued its mandate on November 21, returning Abbott’s appeal to this Court

where it remains pending. Abbott filed a motion for entry of a nunc pro tunc order in

the underlying proceeding on December 8. Respondent has not ruled on this motion.

Rule of Appellate Procedure 25.2(g) provides, “ Once the record has been filed in

the appellate court, all further proceedings in the trial court—except as provided

otherwise by law or by these rules—will be suspended until the trial court receives the

appellate-court mandate.” TEX. R. APP. P. 25.2(g).

In re Abbott Page 2 Here, Respondent has not yet received the mandate of this Court in Abbott’s

appeal. Therefore, Respondent does not have jurisdiction to act on Abbott’s motion for

entry of a nunc pro tunc order. See id.; State ex rel. Holmes v. Shaver, 824 S.W.2d 285, 289

(Tex. App.—Texarkana 1992, orig. proceeding); Drew v. State, 765 S.W.2d 533, 535-36

(Tex. App.—Austin 1989), pet. dism’d, improvidently granted, 805 S.W.2d 451 (Tex. Crim.

App. 1991) (per curiam); see also TEX. R. APP. P. 23.1 (“unless the defendant has

appealed,” a trial court may enter a judgment nunc pro tunc); cf. Ware v. State, 62 S.W.3d

344, 353-54 (Tex. App.—Fort Worth 2001, pet. ref’d) (trial court retains jurisdiction to

enter judgment nunc pro tunc after notice of appeal is filed until appellate record is

filed). Because Respondent does not have jurisdiction, he cannot have abused his

discretion by refusing to rule on the motion.

Accordingly, we deny Abbott’s mandamus petition.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Petition denied Opinion delivered and filed January 28, 2009 Do not publish [OT06]

In re Abbott Page 3