Martha Yanette Melendez v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

MARTHA YANETTE MELENDEZ, ) No. 08-05-00343-CR

)

Appellant, ) Appeal from

)

v. ) 346th District Court

)

THE STATE OF TEXAS, ) of El Paso County, Texas

)

Appellee. ) (TC# 990D04290)

MEMORANDUM OPINION

Martha Yanette Melendez attempts to appeal the trial court s denial of her motion for formal sentencing. We dismiss the appeal for want of jurisdiction.

In October of 2000, Appellant s capital murder trial commenced in the trial court. During the jury s guilt-innocence deliberations, Appellant absconded to Mexico. The trial court continued the trial in Appellant s absence and the jury found Appellant found guilty of the lesser-included offense of murder. The jury assessed punishment at life imprisonment. On October 11, 2000, the trial court imposed sentence over defense counsel s objection that Appellant was not present. The trial court determined that Article 33.03 of the Code of Criminal Procedure authorized the court to continue Appellant s trial to its conclusion, and that its conclusion included sentencing. Appellant did not appeal her conviction.

Sometime in 2005, Appellant was arrested in Mexico and extradited to Texas. On September 15, 2005, Appellant filed a motion // requesting that she be formally sentenced, and the court held a hearing on the motion on September 22, 2005. The court denied the motion. Appellant filed a notice of appeal expressing a desire to appeal the hearing of September 22, 2005.

Following receipt of the notice of appeal, the clerk of the Court notified Appellant in writing on December 12, 2005, that it appeared she was attempting to appeal from a non-appealable order and that her appeal was subject to dismissal. The second paragraph of the letter went on to note that since Appellant had not been sentenced in open court as required by Article 42.03 of the Code of Criminal Procedure, the Court would treat the notice of appeal as prematurely filed pursuant to Rule 27.1(b). See Tex.R.App.P. 27.1(b)([i]n a criminal case, a prematurely filed notice of appeal is effective and deemed filed on the same day, but after, sentence is imposed in open court). The letter also informed the parties that the Court would afford forty-five days for formal sentencing.

In response to that letter, the State filed a motion to rescind the December 12, 2005 letter and dismiss the appeal for want of jurisdiction. The State particularly objects that the letter effectively decided the merits of the issue presented by the case, that is, whether Article 33.03 permits the sentencing of Appellant in absentia. Additionally, the State argues that the Court lacks jurisdiction of any appeal from the trial court s denial of Appellant s motion for formal sentencing because it is not an appealable order.

Having reconsidered the issues, the Court finds that the State is correct. The trial court s refusal to sentence, or re-sentence, Appellant in open court is not an appealable order and the merits of the trial court s decision to sentence Appellant in absentia are not before the Court. We therefore grant the State s motion and rescind the second paragraph of our December 12, 2005 letter. The appeal is dismissed for want of jurisdiction.

March 30, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)