Opinion
No. 05-03-01683-CR
Opinion Filed September 30, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-40909-MR. Vacate and Dismiss.
Before Justices WRIGHT, RICHTER, and MAZZANT.
OPINION
This is Carl Dewayne Hopkins's second appeal stemming from his November 2002 conviction for aggravated robbery with a deadly weapon. This Court dismissed his first appeal after a review of the record revealed the trial court had signed an order granting Hopkins a new trial. See Hopkins v. State, No. 05-02-01804-CR (Tex.App.-Dallas July 2, 2003, no pet.) (not designated for publication). Following the dismissal, the trial court entered an order entitled "Order Granting Judgment Nunc Pro Tunc." In this order, the court concluded the granting of the new trial had been a clerical error. The instant appeal challenges this conclusion. However, we do not reach the merits of the appeal because at the time the trial court entered the order, our mandate in the first appeal had not issued. Because our mandate had not issued, the trial court was without jurisdiction to enter the "Order Granting Judgment Nunc Pro Tunc" and the order is void. Accordingly, we vacate the order and dismiss the appeal. Before a court may act on a case, it must have jurisdiction, that is, it must have the power to hear and determine the case. State v. Riewe, 13 S.W.3d 408, 410 (Tex.Crim.App. 2000); Yarbrough v. State, 703 S.W.2d 645, 648 (Tex.Crim.App. 1985); State v. Klein, 224 S.W.2d 250, 252 (Tex.Crim.App. 1949). Rule 23.1 of the Texas Rules of Appellate Procedure vests a trial court with the authority to correct clerical mistakes or errors in a judgment or order through entry of a nunc pro tunc judgment so long as the defendant has not appealed. See Tex.R.App.P. 23.1; State v. Bates, 889 S.W.2d 306, 309 (Tex.Crim.App. 1994) (interpreting former rule of appellate procedure 36, predecessor to current rule 23.1). Absent certain exceptions not relevant here, once a defendant has filed a notice of appeal and the record has been filed with the appellate court, the trial court lacks authority to act on the case until it receives the appellate court's mandate. See Tex.R.App.P. 25.2(g); Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App. 1995) (interpreting former appellate rule 40(b)(2), predecessor to current rule 25.2). If the trial court acts without authority, its actions are void and the proper remedy is to return the parties to the positions they occupied prior to the trial court's actions. Green, 906 S.W.2d at 939; Deifik v. State, 58 S.W.3d 794, 798 (Tex.App.-Fort Worth 2001, pet. ref'd). The relevant dates in this case are (1) November 6, 2002-the date Hopkins filed his notice of appeal in the first appeal; (2) May 7, 2003-the date the record was filed in that appeal; (3) July 2, 2003-the date this Court issued its opinion dismissing that appeal; (4) October 24, 2003-the date the trial court entered its "Order Granting Judgment Nunc Pro Tunc;" and (5) November 24, 2003-the date this Court issued its mandate. Thus, the earliest the trial court could have acted in this case was November 24, 2003. Because the court entered the nunc pro tunc order before then, the order is void. Accordingly, we vacate the trial court's "Order Granting Judgment Nunc Pro Tunc" and dismiss the appeal. See Deifik, 58 S.W.3d at 798. The court's original order granting the motion for new trial stands and the parties are returned to the positions they occupied before the nunc pro tunc order. See id.