In Re Otis Laird Boggess--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-469 CV
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IN RE OTIS LAIRD BOGGESS

Original Proceeding
MEMORANDUM OPINION

Otis Laird Boggess filed a document that we addressed as a petition for writ of mandamus. Because the document was not in the required form for a petition for writ of mandamus, we notified Boggess that he could amend his petition. See Tex. R. App. P. 52. Boggess filed a reply in which he claims that the document is not a petition for writ of mandamus but is a notice of appeal and motion for rendition of judgment and pronouncement of sentence. See Tex. R. App. P. 23, 25.2.

Although provided with an opportunity to file an amended petition that demonstrates that the act sought to be compelled is purely ministerial and that he has a clear and indisputable right to relief, Boggess has not done so. See State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001). Boggess claims the document is a notice of appeal; however, he admits that a written judgment entered in the case in 2004 recites that sentence had been orally imposed. If the document were a notice of appeal, it would not invoke our appellate jurisdiction because it was not timely filed from the date recited in the judgment. See generally Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005) ("Appellate jurisdiction is invoked by giving timely and proper notice of appeal."). The recitations in the judgment are binding in the absence of direct proof of their falsity. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh'g). Boggess makes a bare assertion that he was not orally sentenced, but supplies no proof to overcome the presumption of regularity of judgments.

No mandamus relief is sought in this case, and our appellate jurisdiction has not been timely invoked. The petition is dismissed.

APPEAL DISMISSED.

PER CURIAM

 

Opinion Delivered December 7, 2006

Before McKeithen, C.J., Gaultney and Kreger, JJ.