                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-17-00001-CR


JAMES E. WILLIAMS                                                       APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1469951R

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   MEMORANDUM DISSENTING AND CONCURRING OPINION1

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      Appellant’s December 6, 2016 notice of appeal is timely as to his

conviction and sentence pronounced on October 6, 2016, see Tex. R. App. P.

26.2(a)(2), but he chose to complain of neither. Instead, he complains of the trial

court’s October 25, 2016 “Nunc Pro Tunc Order Correcting Minutes of the Court.”

If this court had jurisdiction to entertain the issues Appellant chose to raise in his

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       See Tex. R. App. P. 47.4.
brief on appeal, I would join the majority in holding that the trial court did not err

by adding language reflecting mandatory sex offender registration requirements

to its judgment via the challenged nunc pro tunc order; I concur to that extent.

However, a motion for new trial does not extend the deadline for filing a notice of

appeal from an order nunc pro tunc because it is merely “an appealable order.” I

therefore have no choice but to dissent from the majority’s reaching the merits of

Appellant’s issues.

      Appellate rule 26.2 provides that a criminal defendant’s notice of appeal

must be filed:

           (1) within 30 days after the day sentence is imposed or
      suspended in open court, or after the day the trial court enters an
      appealable order; or

            (2) within 90 days after the day sentence is imposed or
      suspended in open court if the defendant timely files a motion for
      new trial.

Tex. R. App. P. 26.2. “A plain reading of the rule reveals that a timely-filed

motion for new trial can only extend the deadline for filing an appeal from the

imposition or suspension of a sentence; it cannot extend the deadline for filing an

appeal from a mere ‘appealable order.’” Martin v. State, No. 2-06-272-CR, 2007

WL 529905, at *1 (Tex. App.—Fort Worth Feb. 22, 2007, no pet.) (mem. op., not

designated for publication); see also Ex parte Delgado, 214 S.W.3d 56, 58 (Tex.

App.—El Paso 2006, pet. ref’d) (mem. op.) (noting “[r]ule 26.2(a)(2) does not

include ‘or other appealable order’ in providing for” an extension of time to file a

notice of appeal based on a motion for new trial and concluding under “the


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[rule’s] plain language” that when the appealed order “does not involve imposition

or suspension of a sentence, the notice of appeal must be filed within the thirty-

day time period provided by rule 26.2(a)(1)”); Welsh v. State, 108 S.W.3d 921,

922 (Tex. App.—Dallas 2003, no pet.) (same).

      A nunc pro tunc order is an appealable order; a notice of appeal

challenging it must therefore be filed within thirty days after the trial court signs it.

See Tex. R. App. P. 26.2(a)(1); Blanton v. State, 369 S.W.3d 894, 903–04 (Tex.

Crim. App. 2012); Loftin v. State, No. 02-11-00366-CR, 2012 WL 5512391, at *2

(Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem. op., not designated for

publication); see also Ortiz v. State, 299 S.W.3d 930, 933 (Tex. App.—Amarillo

2009, no pet.) (“It has been held that ‘entered’ by the court means a signed,

written order.”) (citations omitted). Accordingly, Appellant’s notice of appeal from

the October 25, 2016 nunc pro tunc order was due November 28, 2016. See

Tex. R. App. P. 4.1(a), 26.2(a)(1). Filed December 16, 2016, his notice of appeal

was filed too late to vest this court with jurisdiction over that order. See Tex. R.

App. P. 26.2(a)(1).

      Therefore, interpreting rule 26.2 as it is written, I would hold that we have

no jurisdiction to address the issues Appellant chose to raise in his brief. See id.;

see also Dewalt v. State, 417 S.W.3d 678, 690 (Tex. App.—Austin 2013)

(holding same but noting that “[t]his is the sort of clerical error that can properly

be corrected by nunc pro tunc”) (internal quotation marks omitted), pet. ref’d,

426 S.W.3d 100 (Tex. Crim. App. 2014); cf. Letter from James Madison to


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Charles Jared Ingersoll (June 25, 1831), reprinted in The Mind of the Founder:

Sources of the Political Thought of James Madison 391 (Marvin Meyers ed.,

1973) (“[A] law [must] be fixed in its meaning and operation[.]”).

      Despite the unique posture of this case, in which we could not determine

our jurisdiction until Appellant filed his brief, the two issues he raised do not

challenge his conviction or sentence but instead complain of an order which his

notice of appeal was filed too late to encompass; I would therefore dismiss his

appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (“If an

appeal is not timely perfected, a court of appeals . . . can take no action other

than to dismiss the appeal.”) (citing Olivo v. State, 918 S.W.2d 519, 523 (Tex.

Crim. App. 1996)).        Because the majority instead reaches the merits of

Appellant’s issues, I respectfully dissent.


                                                    /s/ Mark T. Pittman

                                                    MARK T. PITTMAN
                                                    JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 19, 2018




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