State v. Rosenbaum

818 S.W.2d 398, 1991 Tex. Crim. App. LEXIS 231, 1991 WL 219082

• Court: Court of Criminal Appeals of Texas
• Decided: October 30, 1991
• Docket: 1005-90
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This petition involves the State’s appeal from an order quashing allegations of materiality in a perjury indictment pursuant to Art. 44.01(d), V.A.C.C.P. In its findings of fact and conclusions of law, the trial court¹ found no materiality in the alleged perjurious statements. The State then filed an appeal with the Fourteenth Court of Appeals. Art. 44.01(a)(1), V.A.C.C.P.² The court of appeals dismissed the State’s appeal in an unpublished opinion. State v. Rosenbaum (Tex.App. — Houston [14th] No. A14-90-00616-CR, delivered Aug. 28, 1990). The court reasoned that the notice of appeal was untimely filed based upon the 15-day time limits set forth in Art. 44.01(d) and TEX.R.APP.PROC. 41(b)(1); therefore, it had no jurisdiction to hear the appeal. This Court granted the State’s petition based on its sole ground for review, that “the Court of Appeals erred in holding that notice of appeal was untimely.” The State requests this Court to order the court of appeals to reverse the untimely dismissal and address the merits of this case. On the basis of the facts of this case, we will reverse the judgment of the court of appeals.

We borrow liberally from the State’s petition for a recitation of the facts in the instant case. The defendant, Sheriff of Washington County, was indicted for aggravated perjury.³ Upon defendant’s motion, the trial court dismissed that portion of the indictment alleging that the misstatement was material.⁴ Visiting District Judge Larry Gist signed the trial court order quashing a portion of the indictment on June 28, 1990. The record reflects that the order signed by Judge Gist contains the following language, “This order is to be entered of record by the District Clerk on Monday, July 2, 1990 and will become final 15 days thereafter. Art. 44.01(d) C.C.P.” In closing, the order states, “Signed and entered June 28,1990.” The judge’s signature appears below this statement. Judge Gist then sent the signed order with a cover letter to the District Clerk of Washington County. The letter, dated June 28, 1990, stated, “Enclosed is an order entered in this case. Please file this order of record on Monday, July 2, 1990. It should be kept confidential until that date.”⁵ (emphasis added). The State filed a notice of appeal on July 16, 1990.

Article 44.01(d), Y.A.C.C.P., provides:

(d) The prosecuting attorney may not make an appeal under Subsection (a) or (b) of this article later than the 15th day after the date on which the order, ruling, or sentence to be appealed is entered by the court, (emphasis added).

Rule 41(b)(1), TEX.R.APP.PROC., provides:

(1) Time to Perfect Appeal. Appeal is perfected when notice of appeal is filed within thirty (fifteen by the state) days after the day sentence is imposed or suspended in open court or the day an ap-pealable order is signed by the trial judge; ... (emphasis added).

The court of appeals held that the computation date ran from the date of the judge’s signature, reasoning that the order was effective from the date of signing, in accordance with TEX.R.APP.PROC. 41(b)(1). The court dismissed the State’s appeal as untimely filed, stating it lacked proper jurisdiction to rule on the merits. Because the merits of the State’s appeal before the court of appeals are not relevant and therefore not dispositive of our decision in the instant case, we will address only the jurisdictional issue as it relates to the State’s timely filing of notice of appeal.

The thrust of the State’s argument is that Judge Gist correctly followed the provisions of Art. 44.01(d), V.A.C.C.P., which starts the appellate timeclock from the date of entry by the court. In addition, the State relies on the contents of the letter from Judge Gist directing the District Clerk to “file this order of record” on July 2.⁶ The State further contends that because the specific language of the order states that it was to be “entered of record” on July 2, and would “become final 15 days thereafter,” the judge’s specific intent was to follow the guidelines set out in Art. 44.01(d). Although the judge’s intention here was apparently to hold entry of the order until July 2, his own writings to that effect are unclear.

Appellee counters in his brief that the trial judge “signed and entered the Order on June 28, 1990.” (emphasis supplied). Appellee also relies on the judge’s letter to the clerk, “Enclosed is an order signed and entered,” in addition to the following language of the order, “signed and entered June 28,” to show the appellate timetable began June 28th. Generally, we look to the interpretation of the language used in the relevant statutes, to-wit: Art. 44.01(d) which uses the date entered by the court, and TEX.R.APP.P. 41(b)(1), the date signed, to see which controls.

Without elaboration, the court of appeals ruled that TEX.R.APP.PROC. 41(b)(1) controls the instant case, implicating a conflict between the two provisions. Several rules of statutory interpretation are applicable to our analysis. We first attempt to harmonize statutory provisions containing apparent conflicts, so as to give effect to each. See TEX.GOV’T CODE ANN. § 311.025(b) (harmonize if possible amendments to the same statute); and § 311.026(a) (where general provision conflicts with local or special law, construe if possible to give effect to each). In so doing, we will attempt to determine the legislative intent⁷ in the enactment of 44.01(d), and then examine the relationship between 44.01(d) and Rule 41(b)(1) (amended 1989).

A close scrutiny of the language of 44.-01(d) as compared with Rule 41(b)(1) invites a harmonizing interpretation. A basic tenet of statutory construction urges the interpretation of words and phrases in context, according to the rules of grammar and common usage. TEX.GOV’T CODE ANN. § 311.011(a). An exception to this rule exists where words and phrases have acquired a technical meaning, and they are to be construed accordingly. TEX.GOV’T CODE ANN. § 311.011(b). We are also guided by the interpretative instruction of Art. 3.01, V.A.C.C.P., to-wit: “All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”

We are cognizant that this Court has long held that the signing of a judgment, ruling, or order is a function of the court separate and distinct from the entry of said judgment, ruling, or order into the records of the court.⁸ However, this Court has not previously been confronted with the interpretation of the phrase “entry by the court” as it is used in Art. 44.01(d). Thus, we deal now with a question of first impression, to-wit: the interpretation of Art. 44.01(d) in limiting the State’s appeal to 15 days “after the date on which the order, ruling, or sentence to be appealed is entered by the court.” (emphasis added). Our focus therefore shifts from the meaning of “entry” or “entered” as it is used in reference to the duties of the clerk to its meaning in relation to action taken by “the court.”

It is clear from our past decisions that the term “enter” has acquired a technical meaning when used in the context of entry of an order into the minutes of the court (see footnote 8). However, it has also come to commonly mean the act of rendering by a judge or justice. See Joachim v. Chambers, 815 S.W.2d 234 (Tex.1991) (Gonzalez, J., dissenting). In common usage and practice, the term “court” has been defined as a governmental department organized to administer justice, and is inclusive of both judge and jury. See BLACK’S LAW DICTIONARY 425 (4th ed.1968), citing Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Comm’n.App.,1920, holding approved). The words “court” and “judge” are frequently used in statutes interchangeably. Black’s at 425. Further, when these terms are used in reference to orders made by the court or judge they are to be interpreted synonymously. Id., and cases cited therein.⁹

Indeed, the date of actual entry into the court’s record should be irrelevant vis-a-vis appeals by the State under Art. 44.01(d). Entry into the records of the court is merely ministerial in nature. Wilson, 677 S.W.2d at 522. As a practical matter, a judge may never really know when a signed order, judgment, or ruling is physically entered into the record. There are no consistent deadlines for clerical entry into the record in the courts throughout Texas. To rule that an appeal must be made within a certain time period following entry into the record would serve a gross injustice to all litigants because none would be following the same timetable.

Finally, it is clear from the language of 44.01 that the legislature intended this statute to facilitate judicial economy. Section (f) states “The court of appeals shall give precedence in its docket to an appeal filed under Subsection (a) or (b) of this article.” ¹⁰ Sections (a) and (b) define the specific situations under which the State may file an appeal. Following this rationale, if the State is allowed to file certain interlocutory appeals from pre-trial orders, the trial process will be significantly expedited by prompt disposition of such appeals. Since an order will always be “entered” by a judge before it is “entered” by a clerk, the first such entry is preferable for purposes of dispatch.

Taking into account both the terms “entered” and “court” in the phrase “entered by the court” in Art. 44.01(d), our reading of this phrase in the context of the statute as a whole leads to an interpretation that in this case the term “entered by the court” encompasses the signing of an order by the trial judge. Thus, “entered by the court” and “entered by the judge” are synonymous in the context of Art. 44.01.

On to the rules of Appellate procedure: Pursuant to statutory authority,¹¹ the Court of Criminal Appeals promulgated the Texas Rules of Appellate Procedure to govern post-trial, appellate and review procedure in criminal cases, effective September 1, 1986. The Court’s intent in adopting the Rules of Appellate Procedure was not only to make allowance for certain criminal matters, but also to conform to the civil rules as much as practicable. We note that the Rule 41(b)(1) language “signed by the trial judge” parallels the language of Texas civil rule 41(a)(1), to wit: “... within thirty days after the judgment is signed, or within ninety days after the judgment is signed....’’12 Furthermore, the term “signature” as defined in the Code Construction Act “includes any symbol executed or adopted by a person with present intent to authenticate a writing.” (emphasis added). See TEX.GOY’T CODE ANN. § 311.005(6) (general definitions including “signed”). Presumably when a judge signs an order or judgment, it is that person’s present intent to authenticate the action taken.

Thus, a timetable based on the date of signature is a logical interpretation of Art. 44.01(d). Establishing a definite starting date for calculating appellate timetables serves the interests of all parties. We therefore find no conflict between Art. 44.-01(d), Y.A.C.C.P., and TEX.R.APP.PROC. 41(b)(1) (amended 1989).

For the above reasons, we would be inclined to find that the court of appeals reached the proper conclusion in dismissing the State’s appeal as untimely filed because it was filed later than 15 days after date of entry by the trial court, i.e., the date of signature by the trial judge. However, the facts in this case dictate a different resolution. As stated infra, the trial judge sent a letter with his order in this cause directing the district clerk of Washington County to “file this order of record on Monday, July 2, 1990.” The order reflects it was “[s]igned and entered June 28, 1990[,]” but a paragraph on the last page of the order cannot be overlooked. There, the judge states in his order:

Should the State elect to appeal this order pursuant to Art. 44.01 C.C.P. and Article 5, Section 26 of the Texas Constitution, this order will be stayed pending the outcome of such an appeal. This order is to be entered of record by the District Clerk on Monday, July 2, 1990 and will become final 15 days thereafter. Art. 44.01(d) C.C.P. (emphasis added).

We read this reference to Art. 44.01(d) following an entry date of July 2, 1990, to say that the State “may not make an appeal ... later than the 15th day after” July 2, 1990. This entry therefore evidences that the judge actually authenticated the document as of July 2, 1990, not June 28, 1990, the date he actually signed the order. While this “post dating” of the signing of the order is unusual, we know of no prohibition against a trial judge, under the (admittedly slippery) concept of inherent power of the court, doing so.¹³ Under this reading, the State timely filed its notice of appeal, and the court of appeals erred in dismissing the State’s appeal.

Thus, although we determine that the appellate timetable for the State under Art. 44.01(d) begins running from the date the trial judge signs his or her order, under the peculiar facts of this case we are compelled to find the State’s filing of notice of appeal was timely even though filed more than 15 days after Judge Gist’s actual signing of the order.

The judgment of the court of appeals is reversed, and this cause is remanded to that court for consideration of the State’s points of error on appeal.

CLINTON, J., concurs in the result.

1 . A pre-trial hearing was conducted to determine the materiality issue during which both the State and defendant presented evidence. The court then allowed each party 10 days to file briefs in the matter. Neither party filed briefs nor authorities. No trial was held in this cause. The judge issued his findings of fact and conclusions of law in an order dismissing that part of the indictment charging the defendant with felony perjury.

2 . Art. 44.01, V.A.C.C.P., reads in pertinent part:

(a)The state is entitled to appeal an order of a court in a criminal case if the order: (1) dismisses an indictment, information, or complaint or any portion of an indictment, information, or complaint; ...

3 . V.T.C.A. Penal Code, § 37.03, regarding aggravated perjury, states:

(a) A person commits an offense if he commits perjury as defined in Section 37.02 of this code, and the false statement:

(1) is made during or in connection with an official proceeding; and

(2) is material.

(b) An offense under this section is a felony of the third degree.

4 .V.T.C.A. Penal Code, § 37.04 defines “materiality” as follows:

(a) A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.

(b) It is no defense to prosecution under Section 37.03 of this code (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.

(c) Whether a statement is material in a given factual situation is a question of law.

5 . Although the trial judge signed the order on June 28, the State proffers in its petition that the judge ordered the entry of record delayed until July 2 in order to allow proper notice to be given to all relevant parties, who resided in different locations. The judge's office was in Beaumont, the trial court in Brenham, the defense attorney in Houston, and the prosecutor was from Bryan.

6 . We note that in Texas jurisprudence, the clerk is not required to file orders of the court. Orders are signed by the judge and entered into the minutes by the clerk. Walker v. Harrison, 597 S.W.2d 913 (Tex.1980).

7 . See TEX.GOVT CODE ANN. § 311.023(3) (statutory construction aids include legislative intent). Legislative intent is primarily determined by an examination of the bill history, tape recordings from committee hearings and floor debate, if available. We have thoroughly researched these investigatory tools and have found nothing definitive regarding the specific intent of the wording used in Art. 44.01(d), "entered by the court.” However, we have found some aspects of the legislative background helpful to our analysis of the issue presented by the case at bar as reflected throughout our opinion.

8 . See Wilson v. State, 677 S.W.2d 518, 522 (Tex.Cr.App.1984) (entered not synonymous with signed but has fixed legal meaning referring to the ministerial act of the clerk in “spreading the court’s judgment in the minutes of the court”); Moore v. State, 156 Tex.Crim. 615, 245 S.W.2d 491 (App.1952) (entered of record of judgment in criminal case means entered in the minutes of the court); Westbrook v. State, 753 S.W.2d 158 (Tex.Cr.App.1988), (trial judge’s oral order denying bail was invalid because the order was not in writing and therefore not entered into the record within the required statutory time frame).

9 .Webster's New Collegiate Dictionary 1977 includes the following in its definition of “court”: "an official assembly for the transaction of judicial business”; “a judge or judges in session.”

10 . Sections (a) and (b) of Art. 44.01 define the specific situations under which the State may file an appeal.

11 . See Acts 1985, 69th Leg., Ch. 685, p. 5136, §§ 1-4 (authorizing the Court of Criminal Appeals to promulgate rule of procedure and evidence in criminal cases).

12 . This language is also the same as, and was derived from, that used in former Art. 44.08(c), V.A.C.C.P., which stated:

For the purpose of this article, "sentencing” means the date the sentence is imposed or suspended in open court or the date the other appealable order is signed by the trial judge. (emphasis added)

Acts 1981, 67th Leg., p. 814, ch. 291, § 127, eff. Sept. 1, 1981. Repealed by Texas Rules of Appellate Procedure effective September 1, 1986 (Acts 1985, 69th Leg., ch. 685, § 4).

13 . The document would be more properly authenticated if the order stated it was "signed and entered" by the judge on July 2, 1990 instead of June 28, 1990.