Santiago Gomez IV v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2009
• Docket: 07-09-00042-CR
• Status: Published

Opinion

NO. 07-09-0042-CR

 

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 31, 2009

______________________________

SANTIAGO MASON GOMEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A17779-0809; HONORABLE ROBERT W. KINKAID, JR., JUDGE

_______________________________

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

ON ABATEMENT AND REMAND

          Appellant, Santiago Mason Gomez, appeals from a trial court judgment pronounced on January 13, 2009, and filed notice of appeal on January 14. The appellate record was due by March 16, 2009. Tex. R. App. P. 35.2(b). The court clerk filed the clerk’s record on March 6. The court reporter has requested three previous extensions of time to file the reporter’s record on April 13, May 15, and June 29, all of which were granted. The court reporter’s monthly report on June 29 indicated that the court reporter has recently completed the reporter’s record in another case consisting of more than 5,000 pages. Further, the report indicated a possible trial week for July 20-24. On the current monthly report, the court reporter indicates five pending appellate cases, with an estimated total page count of over 2,000 pages, all of the cases with record due dates in August. Furthermore, the report indicates a travel week on August 3-7, jury weeks on August 10-20, and another travel week on August 23-27. We note that the 64^th Judicial District covers Hale, Swisher, and Castro counties. Although the court reporter has answered all of our inquiries and has diligently notified this court of her workload, this court has a responsibility to ensure the timely filing of the appellate record. See Tex. R. App. R. 35.3(c).

          Accordingly, we abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 35.3(c). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1.       whether the reporter’s record can reasonably be filed in a manner that does not further delay this appeal or have the practical effect of depriving appellant of the right to appeal, and

2.       whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner.

          The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk’s record to be developed containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and (3) cause a reporter’s record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk’s record and any reporter’s record transcribing the hearing with the clerk of this court on or before August 21, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before August 21, 2009.

          It is so ordered.

                                                                                                 Per Curiam

Do not publish.

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

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

MARCH 15, 2011

GREGORIO RODRIGUEZ, APPELLANT

 FROM THE 137^TH 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).

            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. 

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.

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[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.