Calvin Dwayne Vernon v. State ( 2009 )


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  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-09-00292-CR
    CALVIN DWAYNE VERNON,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 54th District Court
    McLennan County, Texas
    Trial Court No. 1990-0040-C
    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,1 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.
    REX D. DAVIS
    Justice
    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.)
    Dismissed
    Opinion delivered and filed November 4, 2009
    Do not publish
    [CRPM]
    1Appellant’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.
    Vernon v. State                                                                                         Page 2
    

Document Info

Docket Number: 10-09-00292-CR

Filed Date: 11/4/2009

Precedential Status: Precedential

Modified Date: 9/10/2015