Van Johnson v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-98-00398-CR
Van Johnson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0974765, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
PER CURIAM

On February 3, 1998, appellant Van Johnson pleaded guilty and judicially confessed to possession of cocaine. Tex. Health & Safety Code Ann. 481.115(a), (c) (West Supp. 1997). The district court adjudged appellant guilty and assessed punishment, enhanced by two previous felony convictions, at imprisonment for sixteen years. The court imposed sentence in open court on February 13, 1998. No appeal was perfected.

On April 22, 1998, a new attorney was appointed to represent Johnson in this cause. On May 28, this attorney filed a motion for judgment nunc pro tunc complaining that the written judgment inaccurately stated that there had been a plea bargain agreement. The motion asked that the judgment be modified to reflect that the plea was not negotiated. The district court granted the motion the day it was filed and, on June 8, 1998, signed a judgment nunc pro tunc stating that there had been no plea bargain. On June 25, 1998, counsel filed a notice of appeal. In the notice, counsel argues that she "was not appointed to represent Defendant on appeal until after ninety days from the date of sentencing. Defendant . . . asserts that the thirty (30) days in which he had to file this Notice of Appeal should run from the date of the Court's latest judgment herein, signed on June 8, 1998."

The time for perfecting Johnson's appeal from the judgment of conviction began to run on February 13, the day sentence was imposed in open court, and expired on March 16, thirty days later. Tex. R. App. P. 26.2(a)(1). The order granting judgment nunc pro tunc is itself an appealable order, but is distinct from the judgment of conviction. See Homan v. Hughes, 708 S.W.2d 449, 451-52 (Tex. Crim. App. 1986); Ex parte Curry, 712 S.W.2d 878, 880 (Tex. App.--Austin 1986, no pet.). It is clear from the notice of appeal that Johnson does not seek to appeal the nunc pro tunc order and, in any event, he would have no ground for appeal since the order was granted on his motion. Under the circumstances, Johnson is not entitled to appeal from the conviction itself. See Cunningham v. State, 322 S.W.2d 538, 540 (Tex. Crim. App. 1959).

The record before us does not reflect why notice of appeal was not timely filed. While it is possible that Johnson's right to appeal was denied because of ineffective assistance of counsel or some other reason that would entitle him post-conviction habeas corpus relief, this Court is without jurisdiction to provide a remedy on direct appeal. See Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). But see Williams v. State, 957 S.W.2d 949 (Tex. App.--Austin 1997, no pet.) (asking that Olivo be reexamined).

The appeal is dismissed for want of jurisdiction.

 

Before Justices Powers, Kidd and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: August 31, 1998

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