Rhem v. StateRhem v. State
- Reporters:
- , ,
- Before:
- O'Connor
ORDER
O’CONNOR, Justice.
Appellant, Ronnie Rhem, filed a motion for a remand under
On July 22, 1991, appellant pled nolo contendere to possession of a controlled substance with the intent to deliver, and was sentencеd to 25 years confinement and a $50,000 fine. On August 9, 1991, appellant asserts he made a timely request to the court reporter tо prepare a statement of facts from the plea proceeding as required by
Appellant’s motions request this Court (1) to place the original notice of appeal on this Court’s docket; (2) to remand this case for a hearing to determine the reasons for the trial court’s refusal to grant a notice of appeal; (3) to remand this case for a hearing to determine the court repоrter’s failure or refusal to prepare a statement of facts; (4) to grant appellant such other relief to whiсh he may be entitled; and (5) to grant him an extension of time until November 23, 1991, to file a statement of facts, if any.
The first question we must decide is whether appellant properly perfected his appeal, conferring jurisdiction in this Court over the aрpeal. In a criminal case where no motion for new trial is filed, an appeal is perfected by filing a notice of appeal within 30 days after the day sentence is imposed or suspended in open court or the day an aрpealable order is signed by the trial court.
The next question we must decide is whether the trial court has any discretion to “rеfuse” appellant’s appeal based on the proviso in rule 40(b)(1). The proviso in rule 40(b)(1) regulates the extent of the grounds that a defendant can raise on appeal; it does not deprive this Court of jurisdiction over the appeal or give the trial court discretion to “refuse” an appeal. See Jones, 796 S.W.2d at 186. If a notice of appeal does not comply with the requirements of rule 40(b)(1), it fails to preserve any nonju-risdictional defects for appeal, but not because this Cоurt lacks jurisdiction over the appeal. See Jones, 796 S.W.2d at 186. Whether appellant’s notice of appeal complies with rule 40(b)(1) is a question for this Court to decide, not the trial court. See Whitsitt v. Ramsay, 719 S.W.2d 333, 335 (Tex.Crim.App.1986, orig. proceeding) (neither the trial court nor the district clerk have any discretion in regard to forwarding the notice of appeal to the appellate court); State v. Kolenda, 756 S.W.2d 39, 40 (Tex.App.—Houston [1st Dist.] 1988, orig. proceeding) (whether a notice of appeal is effective is a question for the aрpellate court, not the trial court). The trial court had no discretion to “refuse” appellant’s appeаl.
We order the trial court to allow appellant’s notice of appeal to be filed, and order the district сlerk to file the notice of appeal showing that it was timely filed on August 20, 1991. We find it unnecessary to remand this case to the trial court under rule 53(m) for a hearing to determine the reasons for the trial court’s refusal to grant a notice of apрeal.
We grant appellant’s request to remand this case to the trial court under rule 53(m) for a hearing to determine the reasons for the court reporter’s refusal or failure to prepare a statement of facts. The trial cоurt shall also determine whether appellant is indigent. For this purpose, the trial court shall conduct such hearings as may be necessary, make appropriate findings and recommendations, and prepare a record of the proceedings. If appellant is indigent, the trial court shall take such measures as may be necessary to assure the preparation of a statement of facts, if possible. The record so made, including any orders and findings of the trial cоurt, shall . be sent to this Court no later that 30 days from the date of this order. If appropriate, the record may include an affidavit rather than a statement of facts.
It is so ORDERED.
Notes
. Apparently, the trial court “refused” appellant’s appeal, beсause appellant’s notice of appeal does not comply with rule 40(b)(1) by noting the trial court’s permission to appeal. Under rule 40(b)(1), if a conviction is based on a nolo contendere plea pursuant to Tex.Code Crim. P.Ann. art. 1.15 (Vernon 1977), and the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, to prosecute an appeal for a nonjurisdictional defect or errоr that occurred before entry of the plea, the notice of appeal must state that the trial court granted permission to appeal or specify that those matters were raised by written motion and ruled on before trial.