Opinion
No. 11-12-00286-CR
10-18-2012
MELTON SELL, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Taylor County, Texas
Trial Court Cause No. 16805-A
MEMORANDUM OPINION
In 1992, Melton Sell was convicted of the offense of murder and sentenced to a term of confinement for sixty years. On August 21, 2012, Sell filed in the trial court a motion to vacate plea or correct sentence nunc pro tunc. The trial court denied the motion, and Sell filed a notice of appeal. We notified Sell by letter that it did not appear that this court had jurisdiction in this matter, and we requested that Sell file a response showing grounds to continue the appeal.
Sell has filed a response urging that his rights have been violated and that he has a right to appeal the adverse decision denying his motion. The trial court's denial of Sell's motion to vacate plea or correct sentence nunc pro tunc is not an appealable order, and this court has no jurisdiction to entertain an appeal from that order. Everett v. State, 82 S.W.3d 735 (Tex. App.— Waco 2002, pet. dism'd); see also Ex parte Ybarra, 149 S.W.3d 147, 148-49 (Tex. Crim. App. 2004) (appeal of denial of nunc pro tunc is by way of a petition for writ of mandamus). Sell also requests that, if this court determines that it is without jurisdiction over this appeal, we "interpret his filings as a Writ of Mandamus to compel the Court below to allow responsive papers from the District Attorney and hold a fair hearing." Pursuant to appellant's alternative request, we are this day filing Sell's petition for writ of mandamus in this court in Cause No. 11-12-00321-CR. The appeal, Cause No. 11-12-00286-CR, is dismissed for want of jurisdiction.
PER CURIAM Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
McCall, J., and Hill.
Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a successor by the governor or until the next general election.
John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
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