EX PARTE LESTER RAINWATER (other)
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-71,783-01
EX PARTE LESTER RAINWATER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM HENDERSON COUNTY
Johnson, J., filed a concurring statement in which Price, Hervey, and Cochran, JJ., joined.
C O N C U R R I N G S T A T E M E N T
Applicant contends that he was denied his right to appeal because the trial court failed to advise him of his right to appeal and his trial counsel did not file a notice of appeal. However, those failures, if in fact they were failures, occurred because applicant plead guilty, was released to appear for sentencing, and then failed to appear. The trial court assessed punishment in absentia, and when applicant was returned to custody, he was sent to prison without having sentence pronounced in his presence.
The trial court in this case found that applicant was sentenced in accordance with Texas Code of Criminal Procedure arts. 42.03, § 1(a) and 42.14(b)(4), (b)(5). It mistakenly relied on the version of art. 42.14 that went into effect on September 1, 2009, instead of the version that was in effect at the time of the applicant's sentencing on January 8, 2007. That version specifically applied only to misdemeanors: "The judgment and sentence in a misdemeanor case may be rendered in the absence of the defendant." In 2007, that was the complete text of the article.
Our case law provides that, if sentence should have been, but was not, pronounced in the defendant's presence, appellate courts do not have jurisdiction to review the case because "it is the pronouncement of sentence that is the appealable event . . .." Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also Thompson v. State, 108 S.W.3d 287, 291-92 (Tex. Crim. App. 2003). Because this Court does not have jurisdiction, the cause must be dismissed.
Applicant is not without a remedy, however. He may file an application for a writ of mandamus that asks that the trial court be ordered to sentence applicant in applicant's presence. Once that "appealable event" occurs, he may file a notice of appeal and enter the appellate process.
Filed: September 14, 2011
Do not publish
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