Opinion
No. 04-09-00588-CR
Delivered and Filed: October 7, 2009. DO NOT PUBLISH
Appealed from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2008-CR-1308, Honorable Juanita A. Vasquez-Gardner, Judge. Presiding. DISMISSED.
Sitting: CATHERINE STONE, Chief Justice, KAREN A. ANGELINI, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
On August 9, 2009, appellant Gary Ace Avant filed a notice of appeal stating he was appealing "within thirty (30) days of sentence having been imposed against Defendant on 11 day of July 2009 in said cause." However, the clerk's record does not contain a judgment or other appealable order of the trial court in this cause. Rather, the clerk's record contains a State's motion to dismiss this cause, which was signed by the trial court on June 11, 2009. The motion shows the State requested a dismissal because appellant "was convicted in another case or count," specifically cause number 2008-CR-8981. Thus, it appeared to this court that we had no jurisdiction in this matter. In light of the foregoing, we ordered appellant to file a response showing why the appeal should not be dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(c). In response, appellant's appointed appellate counsel filed a response stating "there is no final conviction in this case, and therefore no jurisdiction for this Court to consider the Appellant's purported appeal." Accordingly, because there is no appealable judgment or order in this cause, we dismiss the appeal for want of jurisdiction. Id. R. 42.3(a).
Appellant notes there is an inconsistency in the clerk's record in that the "Certificate of Notice of Appealto the Fourth Court of Appeals," which was filed by the district clerk, indicates appellant was convicted in this matter. We agree with appellant that this certificate is incorrect — appellant was not convicted in this cause of any offense.