Opinion
No. 05-13-01234-CR
2013-09-18
AARON MALONE, Appellant v. THE STATE OF TEXAS, Appellee
Dismiss and Opinion Filed September 18, 2013.
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F08-39160-I
MEMORANDUM OPINION
Before Justices O'Neill, Lang-Miers, and Evans
Opinion by Justice Evans
Aaron Malone was convicted of aggravated sexual assault with a deadly weapon and sentenced to sixty year's imprisonment. The conviction was affirmed on direct appeal. Malone v. State, No. 05-11-00157-CR, 2013 WL 427354 (Tex. App—Dallas Feb. 5, 2013, no pet.) (not designated for publication). On August 8, 2013, appellant filed a pro se motion for a judgment nunc pro tunc seeking to have the affirmative deadly weapon finding deleted from the trial court's judgment. The trial court denied appellant's motion by written order on August 15, 2013, and this appeal followed.
"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and if not, the power of the court to act is as absent as if it did not exist. See id. at 523. As a general rule, an appellate court may consider appeals by criminal defendants only after conviction. Wright v. State, 969 S.W.2d 588, 589 (Tex. App—Dallas 1998, no pet.). A court of appeals has no jurisdiction over an appeal absent a written judgment or an appealable order. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010); Nikrasch v. State, 698 S.W.2d 443, 450 (Tex. App—Dallas 1985, no pet.).
An order denying a motion seeking nunc pro tunc relief is not appealable. See Sanchez v. State, 112 S.W.3d 311, 312 (Tex. App.—Corpus Christi 2003, no pet.) (per curiam); Everett v. State, 82 S.W.3d 735 (Tex. App. —Waco 2002, pet. ref'd); Allen v. State, 20 S.W.3d 164, 165 (Tex. App—Texarkana 2000, no pet.). See also State v. Ross, 953 S.W.2d 748, 751-52 (Tex. Crim. App. 1997) (suggesting mandamus as way to seek relief from order denying motion for judgment nunc pro tunc). Accordingly, we dismiss the appeal for want of jurisdiction.
____________________
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131234F.U05
JUDGMENT
AARON MALONE, Appellant
V. THE STATE OF TEXAS, Appellee No. 05-13-01234-CR
On Appeal from the Criminal District Court
No. 2, Dallas County, Texas
Trial Court Cause No. F08-39160-I.
Opinion delivered by Justice Evans,
Justices O'Neill and Lang-Miers
participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction.
____________________
DAVID EVANS
JUSTICE