Roger S. Beal v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 24, 2023
• Docket: 05-23-00179-CR
• Status: Published

Opinion

DISMISS and Opinion Filed April 24, 2023

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00179-CR

ROGER S. BEAL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F07-30163-S

MEMORANDUM OPINION Before Chief Justice Burns, Justice Kennedy, and Justice Garcia Opinion by Chief Justice Burns Appellant filed notice of appeal on October 5, 2022. We lack jurisdiction over

this appeal because there is no order from the trial court relating to this notice of

appeal.

On November 16, 2007, appellant was convicted of aggravated sexual assault

and sentenced to twenty-five years’ imprisonment. On September 13, 2022,

appellant filed a “Nunc Pro Tunc” motion praying that the trial court “find that the

sentence handed down in its judgment, Petitioner’s sentences run concurrent.” The record does not show that the trial court ruled on the motion. Appellant filed notice

of appeal on October 5, 2022.

A defendant perfects his appeal by timely filing a written notice of appeal with

the trial court clerk. See TEX. R. APP. P. 25.2(c). To be timely, the notice of appeal

must be filed within thirty days after the date sentence was imposed or within ninety

days after sentencing if the defendant timely filed a motion for new trial. See TEX.

R. APP. P. 26.2(a). A motion for new trial must be filed no later than thirty days after

sentence is imposed or suspended in open court. TEX. R. APP. P. 21.4(a). The rules

of appellate procedure allow the time to file a notice of appeal to be extended if the

party files, within fifteen days of the filing deadline, the notice of appeal in the trial

court and a motion to extend the time to file the notice of appeal in the court of

appeals. See TEX. R. APP. P. 10.5(b), 26.3. In the absence of a timely perfected notice

of appeal, the Court must dismiss the appeal for lack of jurisdiction. Ex parte

Castillo, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012); Slaton v. State, 981 S.W.2d

208, 210 (Tex. Crim. App. 1998) (per curiam).

Sentence was imposed against appellant on November 16, 2007. Therefore,

appellant’s notice of appeal was due December 16, 2007, or as late as March 15,

2008, if he timely filed a motion for new trial and filed a motion for extension of

time to file notice of appeal. Appellant’s notice of appeal filed September 13, 2022,

does not perfect appellant’s appeal from his conviction.

–2– To the extent appellant may be seeking to appeal from the trial court’s failure

to rule on his “Nunc Pro Tunc Motion,” this Court has no jurisdiction to entertain an

appeal unless the trial court has entered a judgment or appealable order. See Tex. R.

App. P. 26.2(a)(1); State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App.

2012); Henderson v. State, 153 S.W.3d 735, 735–36 (Tex. App.—Dallas 2005, no

pet.). The entry of a nunc pro tunc judgment is an appealable order. Blanton v.

State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). In contrast, the trial court’s

denial of relief or refusal to rule on a motion for judgment nunc pro tunc does not

create an appealable order that may serve as a basis for appellate jurisdiction. See

Desilets v. State, 495 S.W.3d 553, 554 (Tex. App.—Beaumont 2016, no pet.)

(dismissing appeals from order denying request for judgments nunc pro tunc);

Sanchez v. State, 112 S.W.3d 311, 311–312 (Tex. App.—Corpus Christi–Edinburg

2003, no pet.) (per curiam) (same); see also Lopez v. State, No. 05-19-00096-CR,

2019 WL 1486919, at *1 (Tex. App.—Dallas Apr. 4, 2019, no pet.) (mem. op., not

designated for publication) (dismissing appeal where record showed trial court had

not ruled on motion seeking nunc pro tunc relief).

Because the record in this case shows the trial court has not taken any action

on appellant’s motion and did not sign an appealable order, we have no jurisdiction

to entertain appellant’s appeal. See Henderson, 153 S.W.3d at 735–36; Desilets, 495

S.W.3d at 554; see also Lopez, 2019 WL 1486919, at *1.

–3– We dismiss appellant’s appeal for lack of jurisdiction.

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 2300179F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROGER S. BEAL, Appellant On Appeal from the 282nd Judicial District Court, Dallas County, Texas No. 05-23-00179-CR V. Trial Court Cause No. F07-30163-S. Opinion delivered by Chief Justice THE STATE OF TEXAS, Appellee Burns. Justices Kennedy and Garcia participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for want of jurisdiction.

Judgment entered April 24, 2023

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