Opinion
No. 10-09-00292-CR
Opinion delivered and filed November 4, 2009. DO NOT PUBLISH.
Appealed from the 54th District Court McLennan County, Texas, Trial Court No. 1990-0040-C.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS. Chief Justice GRAY concurs in the dismissal of this proceeding. A separate opinion will not issue.
MEMORANDUM OPINION
Appellant Calvin Vernon was convicted of attempted murder in 1991 and sentenced to thirty years' imprisonment. Because the judgment contains a deadly weapon finding that Appellant believes is erroneous, Appellant filed a motion for nunc pro tunc order in the trial court. The trial court denied that motion, and Appellant seeks to appeal the trial court's denial of his motion for an order nunc pro tunc. We notified Appellant that this court may not have jurisdiction over this appeal and that unless he showed grounds for continuing it, we would dismiss his appeal for want of jurisdiction. Appellant has filed a response, but it fails to show that we have appellate jurisdiction. We do not have appellate jurisdiction of the denial of a motion for judgment nunc pro tunc. Everett v. State, 82 S.W.3d 735 (Tex. App.-Waco 2002, pet. dism'd). The appropriate remedy to obtain review of the denial of a nunc pro tunc motion is by a petition for writ of mandamus. Ex parte Forooghi, 185 S.W.3d 498 (Tex. Crim. App. 2006) (Johnson, J., concurring statement); see also Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex. Crim. App. 2004). Accordingly, we dismiss this appeal for want of jurisdiction. Dismissed
Appellant's response and his combined notice of appeal/brief lack proper proof of service as required by the Texas Rules of Appellate Procedure. A copy of all documents presented to the Court must be served on all parties ( i.e., the State) to the appeal and must contain proof of service. TEX. R. APP. P. 9.5. To expedite this matter, we implement Rule 2 to suspend Rule 9.5's proof-of-service requirement.