Opinion
No. 04-18-00206-CR
05-16-2018
Remigio A. MARTINEZ III, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2003CR5033
Honorable Lorina I. Rummel, Judge Presiding PER CURIAM Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED FOR WANT OF JURISDICTION
Appellant Remigio A. Martinez III was charged with the offense of arson of a habitation, and the State sought a finding of habitual offender and an affirmative finding of deadly weapon. Martinez pled nolo contendere to the offense as charged. The trial court sentenced Martinez to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. Martinez filed two separate motions for judgment nunc pro tunc. The trial court granted in part the first motion, but it was not presented with the second. In January 2018, Martinez asked the trial court to rule on his second nunc pro tunc motion, which the trial court denied on January 26, 2018.
Martinez mailed his notice of appeal on February 27, 2018, with a request for an extension of time to file his notice of appeal, but his remedy does not lie in a direct appeal.
"Neither the United States nor Texas constitution guarantees the right to appeal state criminal convictions." Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004); accord Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). A defendant may appeal a state criminal conviction only as authorized by statute. Griffin, 145 S.W.3d at 646; Phynes, 828 S.W.2d at 2. "No statute vests this [c]ourt with jurisdiction over an appeal from an order denying a request for judgment nunc pro tunc." Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. ref'd) (mem. op.); accord Reyes v. State, No. 04-12-00267-CR, 2012 WL 2602965, at *1 (Tex. App.—San Antonio July 5, 2012, no pet.) (per curiam) (mem. op., not designated for publication).
The proper remedy to obtain review of the denial of a motion for judgment nunc pro tunc is by petition for writ of mandamus. Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010); Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004).
We ordered Martinez to show cause in writing why this appeal should not be dismissed for want of jurisdiction. Martinez's court-appointed counsel timely filed a response acknowledging that Martinez has no right to appeal the denial of his motion for judgment nunc pro tunc.
We dismiss this appeal for want of jurisdiction. See Griffin, 145 S.W.3d at 646; Phynes, 828 S.W.2d at 2; Everett, 82 S.W.3d at 735.
PER CURIAM DO NOT PUBLISH