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In re Ford

Court of Appeals of Texas, Tenth District

June 27, 2018

IN RE JOSEPH CLYDE FORD

          Original Proceeding

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          TOM GRAY CHIEF JUSTICE

         Joseph Clyde Ford has been forced through a procedural quagmire that is difficult to imagine, much less summarize. The question is, presuming the trip through the quagmire was in error, whether this Court, or some other court, has the jurisdiction to fix it. We have concluded that we only have jurisdiction by a petition for writ of mandamus to order the trial court to vacate the last order it has rendered in a series of orders and judgments. What happens next, like the procedural development of this proceeding, is anything but clear.

         Procedural History

         We believe it is necessary to review some of the procedural history of this proceeding; but first, an overview is helpful to understand where we are going. The genesis of the problem started with Ford's conviction in March, 1992. The judgment for that conviction is at the heart of this proceeding. The fundamental question is whether the 1992 judgment was for a third degree or second degree felony. According to Ford, the difference is significant because the sex offender registration requirements would be for 10 years if it was a third degree felony, or life if it was a second degree felony. Moreover, according to Ford, if the offense was a third degree felony, he could not be subject to prosecution for failing to register as a sex offender after 2002.[1]

         Now we turn to some additional procedural details. There have been three nunc pro tunc judgments rendered in this case since 1992. Then, most recently, an order was rendered that purports to vacate the last two of those judgments and revive the first nunc pro tunc judgment. Specifically, in 2014, 22 years after the entry of the original judgment, the trial court rendered the first nunc pro tunc judgment. The 2014 judgment purported to change the offense level from a third degree felony to a second degree felony. In 2016, the trial court rendered the second nunc pro tunc judgment. The 2016 judgment purports to change the offense level from a second degree felony back to a third degree felony.

         In early 2017, the trial court rendered a third nunc pro tunc judgment which purports to change a citation of the specific statute Ford was convicted of violating. The statute cited in the 2016 nunc pro tunc judgment was section 22.11(a)(1) of the Texas Penal Code, sexual assault by contact, which is a second degree felony, notwithstanding that the judgment recited that the offense level was a third degree felony. The change in the early 2017 nunc pro tunc judgment was to change the statutory reference to section 22.11(a)(2), sexual assault by exposure, which is consistent with the recitation in the 2016 judgment that the conviction was for a third degree felony.

         After the rendition of the third nunc pro tunc judgment, the State of Texas moved for a reconsideration of the second and third nunc pro tunc judgments.[2] In late 2017, the trial court signed an order which purported to order the second and third nunc pro tunc judgments "vacated" and breathe new life into the 2014 nunc pro tunc judgment. It is this late 2017 order that Ford attacks in this proceeding. We specifically note that the trial court did not sign a fourth nunc pro tunc judgment.

         Our Appellate Jurisdiction

         Now we must look at some specific dates as necessary to determine whether the trial court had jurisdiction to render the late 2017 order. The third judgment nunc pro tunc was signed on January 10, 2017. The State's motion to reconsider that judgment was filed on March 6, 2017. A hearing on the State's motion was set for, and was held on, April 12, 2017. The trial court's order that purported to vacate the January 10, 2017 nunc pro tunc judgment was not signed until October 18, 2017.[3]

         Ford attacks the October 18, 2017 order, in part, because the State waited too long to complain about the January 10, 2017 judgment. Ford is correct, as far as that argument takes him, but there remains a plethora of issues that we cannot address in this proceeding.

         That we have jurisdiction to review a modification made in a nunc pro tunc judgment that is adverse to the appellant has been well-established by Court of Criminal Appeals' precedent. Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012). But the order the trial court signed in late 2017 is not a nunc pro tunc judgment. The October 18, 2017 order is just that, an order in response to a motion for reconsideration brought to modify or vacate the trial court's January 10, 2017 judgment. We do not have a judgment nunc pro tunc in front of us for review. See Guthrie-Nail v. State, 543 S.W.3d 225, 227 (Tex. Crim. App. 2018) (Oral ratification of a prior nunc pro tunc judgment is not an appealable order; trial court must "enter" a new nunc pro tunc judgment which would be appealable.).

         Jurisdiction must be expressly given to the courts of appeals. Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). The standard for determining jurisdiction is not whether the appeal is precluded by law, but whether the appeal is authorized by law. Abbott v. State, 271 S.W.3d 694, 696 (Tex. Crim. App. 2008). We have not found any rule or any statutory or constitutional provision that would authorize Ford's appeal from the trial court's ...


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