Rodolpho Cipriano Gomez v. State

• Court: Court of Appeals of Texas
• Decided: October 6, 2020
• Docket: 03-20-00460-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00460-CR

Rodolpho Cipriano Gomez, Appellant

v.

The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF COMAL COUNTY, NO. CR2003-159, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

MEMORANDUM OPINION

In 2005, a jury convicted appellant Rodolpho Cipriano Gomez of the offense of

engaging in a criminal activity, see Tex. Penal Code § 71.02(a)(5), and the district court

sentenced him to sixty years’ imprisonment. This Court affirmed the judgment of conviction on

appeal. See Gomez v. State, No. 03-05-00842-CR, 2008 WL 4603574, at *1 (Tex. App.—Austin

Oct. 16, 2008, pet. ref’d) (mem. op., not designated for publication). Earlier this year, Cipriano

Gomez filed a pro se motion for judgment nunc pro tunc in the trial court. See Blanton v.

State, 369 S.W.3d 894, 897-98 (Tex. Crim. App. 2012) (explaining purpose of nunc pro tunc

judgment is to allow correction of clerical errors when there is discrepancy between judgment

pronounced in court and judgment reflected in record). The trial court denied the motion.

Cipriano Gomez has filed a notice of appeal from the trial court’s order.

In response, the State has filed a motion to dismiss the appeal, arguing that we

lack jurisdiction to review the trial court’s order. We agree. “The standard for determining jurisdiction is . . . whether the appeal is authorized by law.” Abbott v. State, 271 S.W.3d 694,

696-97 (Tex. Crim. App. 2008) (citing Tex. Const. art. V, § 6(a)). In criminal cases, an appeal is

authorized only when a trial court “enters a judgment of guilt or other appealable order.” Tex. R.

App. Proc. 25.2(a)(2); Tex. Code Crim. Proc. art. 44.02. Cipriano Gomez filed a response to the

motion to dismiss, relying on the Texas Court of Criminals Appeals’ decision in Blanton to argue

that a nunc pro tunc judgment is an appealable order. See Blanton, 369 S.W.3d at 903-04.

However, Cipriano Gomez does not appeal from a nunc pro tunc judgment issued after the trial

court granted a motion for judgment nunc pro tunc—he appeals from the trial court’s order

denying his motion for judgment nunc pro tunc. An order denying a judgment nunc pro tunc

does not result in a new judgment and is not an appealable order. See, e.g., Abbott, 271 S.W.3d

at 697; Everett v. State, 82 S.W.3d 735 (Tex. App.—Waco 2002, pet. dism’d); see also Aleman

v. State, No. 03-14-00576-CR, 2014 WL 5656540, at *1 (Tex. App.—Austin Oct. 29, 2014, no

pet.) (mem. op., not designated for publication) (dismissing appeal in similar case).

Accordingly, we grant the State’s motion and dismiss the appeal for want of

jurisdiction.

__________________________________________ Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Baker and Kelly

Dismissed for Want of Jurisdiction

Filed: October 6, 2020

Do Not Publish