PD-0441-17 09/13/2017
1. “The Court of Appeals erred in dismissing this case for want of jurisdiction, because ‘no written appealable order’ existed when in fact the original judgment, nunc pro tunc, provided the Court of Appeals with a written appealable order.”
2. “The Court of Appeals erred in giving this appeal a new cause number and then stating there was no written appealable order where the remand to the trial court and subsequent notice of appeal was a continuation of the original appeal in Court of Appeals No. 05-13- 00016-CR.”
3. “The Court of Appeals erred in dismissing this cause for want of jurisdiction stating there was no appealable order which if stands allows the Court of Appeals and the Trial Court to deny Appellant due process of law in the continuing exercise of her right to appeal the trial court’s rationale for entering a defective order nunc pro tunc adding a deadly weapon finding to the judgement.”
Guthrie-Nail pleaded guilty to conspiracy to commit capital murder. The trial court found her guilty “as set forth in the indictment” but did not expressly make a deadly weapon finding. The original judgment indicated a deadly weapon finding was not applicable. Later, without notice to the defense or a hearing, the trial court added the deadly weapon finding on a judgment nunc pro tunc. Guthrie-Nail appealed the entry of the deadly weapon finding. The court of appeals affirmed, but the Court of Criminal Appeals held it was unclear whether the trial court had made a deadly weapon finding before the original judgment was entered and remanded the case to the trial court. On remand, the trial court stated in a hearing that when it found Guthrie-Nail guilty as charged in the indictment, it believed it was entering a deadly weapon finding. The trial court memorialized its ruling through a docket sheet entry but did not enter another judgment or written order. Guthrie-Nail attempted to appeal again. The court of appeals held that without a written judgment or order, it had no jurisdiction over the appeal.
Guthrie-Nail argues that the Court of Criminal Appeals’ remand order gave him a right of review over his original issue—whether the deadly weapon finding could properly be entered nunc pro tunc. He contends this appeal is a continuation of the original appeal from the judgment nunc pro tunc (which is a written appealable order) and should have been filed in the original cause number.
