Kenneth Wayne Cook v. State

• Court: Court of Appeals of Texas
• Decided: April 3, 2014
• Docket: 06-14-00005-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00005-CR

KENNETH WAYNE COOK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR13-029

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Kenneth Wayne Cook, appellant, was convicted by a jury on December 10, 2013, of

burglary of a building. Following the announcement of the jury’s verdict on December 10, the

trial court recessed until the following day, December 11, when the punishment phase of the trial

was scheduled to begin. Cook failed to appear in court on December 11 for the punishment and

sentencing phases of the trial, never surrendered to authorities, and apparently remains at large to

this day. After affording Cook’s court-appointed counsel an opportunity to locate Cook, the trial

court proceeded with the punishment phase of the trial on December 11 without Cook. The jury

recommended a sentence of eighteen months in a state jail facility, and the trial court entered a

written judgment on December 11, 2013, that purported to sentence Cook, consistent with the

jury’s recommendation, in absentia. On December 20, 2013, in an effort to protect his client’s

interests, Cook’s trial counsel filed a notice of appeal on Cook’s behalf.

The State subsequently filed a motion to dismiss the appeal relying on Rule 42.4 of the

Texas Rules of Appellate Procedure, which allows for the involuntary dismissal of an appeal in a

criminal matter when the appellant has escaped from custody pending appeal. 1 See TEX. R. APP.

P. 42.4. In reviewing and considering the State’s motion, we identified a more basic

jurisdictional issue raised by the facts of this case. 2 Except in a very limited set of circumstance

1 Rule 42.4 is applicable to a very limited set of circumstances. Because we find that we lack jurisdiction over this appeal, we need not consider and make no determination regarding the applicability of Rule 42.4 to the facts of this case. 2 We note that neither the clerk’s nor reporter’s records have been filed in this matter. While the lack of an appellate record would unquestionably preclude us from reaching the merits of Cook’s appeal, the issue at hand is one of jurisdiction. “[E]ach court has jurisdiction to determine whether it has jurisdiction.” State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled in part on other grounds by State v. Medrano, 67 S.W.3d 892 (Tex.

2 not present in this case, Article 42.03, Section 1(a) of the Texas Code of Criminal Procedure

requires trial courts to pronounce sentence in the defendant’s presence. TEX. CODE CRIM. PROC.

ANN. art. 42.03, § 1(a) (West Supp. 2013); see TEX. CODE CRIM. PROC. ANN. art. 42.14 (West

Supp. 2013). Compliance with Article 42.03, Section 1(a) is a jurisdictional requirement, and in

the absence of such compliance, an appellate court is without jurisdiction. Keys v. State, 340

S.W.3d 526, 528–29 (Tex. App.—Texarkana 2011, pet. ref’d).

Because Cook absconded prior to sentencing, the trial court did not and could not have

orally pronounced sentence in Cook’s presence. Consequently, this Court lacks jurisdiction over

this appeal.

Having found that we lack jurisdiction, the next issue we must address is the proper

remedy. Under Rule 44.4 of the Texas Rules of Appellate Procedure, when the proper

presentation of a case on appeal is the result of a remediable act or failure to act by the trial

court, we are required to direct the trial court to remedy the error in lieu of dismissing the appeal.

TEX. R. APP. P. 44.4. While we have previously utilized Rule 44.4 in similar situations to abate

the matter to the trial court with directions to orally pronounce sentence in the defendant’s

presence, see Keys, 340 S.W.3d at 529, this case presents a rare and unique set of circumstances.

Given that Cook is currently at large, the defect in our jurisdiction is not immediately curable.

Further, it is unclear when, if ever, the defect can be remedied. Under these circumstances, we

Crim. App. 2002). As we have previously held, we are permitted to consider nonrecord affidavits in deciding matters affecting our jurisdiction. Hernandez v. State, 84 S.W.3d 26, 32 (Tex. App.—Texarkana 2002, pet. ref’d) (citing Yarbrough v. State, 57 S.W.3d 611, 615 (Tex. App.—Texarkana, 2001, pet. ref’d). As required by Rule 42.4 of the Texas Rules of Appellate Procedure, the State filed an affidavit in support of its motion seeking the involuntary dismissal of this appeal. Our determination that we lack jurisdiction over this appeal is based on the sworn assertions contained in the State’s nonrecord affidavit. 3 find that dismissal of the appeal is a more appropriate remedy than abatement. If and when Cook

is apprehended, the trial court can pronounce sentence at that time, which will begin the running

of Cook’s appellate time requirements. Consequently, our decision does not deprive the

appellant of the right to appeal.

We dismiss this appeal for want of jurisdiction.

Bailey C. Moseley Justice

Date Submitted: April 2, 2014 Date Decided: April 3, 2014

Do Not Publish