The judg ment ref lects that there was a

plea ba rg ain. Howe ver, both parties state that the plea 1 was not neg otiated. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 161 -CR

Adr ian He r nande z , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-06 -30 0035 , HO NORAB LE JO N N. WISSER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
Adrian H erna

ndez seeks to appe al following the entry of a judgme nt nunc pro tunc in this cause. At the Court’s reque st, the parties have filed letter briefs reg arding the timeliness of the notice of

appea l and the scope of t he appeal, if any . We conclude that Her nandez has a rig ht of appea l limited to the propriety of the district c ourt’s nunc pro tunc order and that his notice of appe al from that orde r wa s timely filed. On Dec ember

6, 2006, Her

nandez was a djudge d g uilty of burg l ar y o f a habitation afte r he ple aded guilty

to the trial court. The court imposed sente nce of ten y ear s’ imprisonment “with succ essful completion of the 90 da y state boot camp prog ra m fo l l o we d by the succ essful completion of SAFPF prog ram.” See Tex. Code Crim. P roc. A nn. art. 42.12, §§ 8, 14 (West 2006). 1The hear ing was befor e the Honora ble Charles F. B aird, who suc cee ded the Honor able Jon N. 2 Wiss e r a s Judg e of

the 29 9th Di str ic t Co ur

t. For the purpose of

calc ulating the appellate time limi ts, an appe alable or der is ente red on the 3 day it is signe d. See E

x parte Morale

s , 212 S.W .3d 483, 489 (Tex. A pp.—Austin 2006, pe t. ref’ d). We cannot dete rmine fr om the documents bef ore us the exact date whe n the nunc pr o tunc judg ment was sig ned, but that day

must have bee n no ear lier than Fe bruar y 23, the day of the hear ing, a nd no later tha n Fe bruar y 27, the day

the nunc pr o tunc judg ment was filed.

2 I t was subseque ntly

deter mined that Her

nandez is not eligible for

the boot camp pr og ram. F ollowing a hea ring in the district court on F ebrua ry 23, 2007, a judg ment nunc pro tunc was f iled imposing a sente nce of

ten y ear s’ imprisonment. On Marc h 6, 2007 , Her nandez filed a

notice of a

ppeal 2 “fr om the judgme nt convicting him of criminal conduct signe d on or about De cembe r 6, 2006 and Fe bruar y 23, 2 0 0 7
. ” T h e d i strict court c ertified that the notice of a ppeal wa s not tim ely

and that Her nandez has no rig ht of appe al. See Tex. R. App. P . 25.2(d).

Absent a motion for new tria l, the notice of a ppeal in a c riminal case must be filed “within 30 day s after

the day sentenc e is imposed or suspende d in open cour t, or afte r th e day the trial cour

t e nters an appea lable order .” Tex. R. App. P. 26.2(a) (1). An or der g rantinga motion for judg ment nunc pro tunc is an appe alable or der. Se e Mo or e v . S tate , 446 S.W .2d 878, 879 (T e x. Cr im. Ap p. 19 69 ); Cur ry v . S tate , 720 S.W .2d 261, 262 (Tex. App.—Austin 1986, pet. ref ’d). Whether or not the State f ormally moved for e ntry of the judgme nt nunc pro tunc in this cause, we conclude that the district court’s e ntry of the n u n c p ro tunc judg ment is an appe alable or der. Appellant’s notice of appe al was f iled within 30 day s after

the day the orde r wa s entere d. 3 Th e e ntr y of the nunc pr o tun c jud g me nt did no t have the e ff e c t of e xten din g the tim e for pe rfe cting an appe al from Her nandez’s De cembe r 6, 2006, convic tion. Se e Ro da rtev . S tate , 860 S.W .2d 108, 109-10 (Te x . Crim. App. 1993). Her nandez may

not challeng e the judgment convic ting3

him of burg lary

of a ha bitation because he did not perf ect a n appea l with i n 30 day s after sentenc e was imposed. Althoug h the notice of appea l states that the ap p ea l i s from the judg ment of conviction, it is suff

icient under the circ umstances to show Her nandez’s desire to a

ppeal the nunc pro tunc orde r. See Tex. R. App. P . 25.2(c) (2). He rnande z’s r i gh t o f ap peal is limited to the propriety of the F ebrua

ry 23, 2007 order ; it does not e ncompass the Dec ember 6, 2006 judgme nt of
c o n v i c t i o nf

o r b u r g l ar y. The a ppeal is abate d. The district cour t shall file an ame nded ce rtification stating that the def endant’ s appea l is no t i n a p l ea -b arga in case , and the de fenda nt has the rig ht of appe al. A
co p y o f t h e ame nded ce rtification shall be f orwa rded to this Court no later than te n day s from the date of this opini on.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pember ton and Waldrop Abated Filed: June 13, 2007 Do No t Pu

bli sh