Richard Bernard Stepp v. State ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00099-CR

Richard Bernard Stepp,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 06-03822-CRF-272

MEMORANDUM  Opinion

            Richard Bernard Stepp seeks to appeal the trial court’s denial of his motion for judgment nunc pro tunc which he filed nearly two years after his conviction became final.  The Clerk of this Court advised the parties that the appeal is subject to dismissal for want of jurisdiction because it appears there has been no appealable order.  See Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. dism’d). The Clerk also notified the parties that the appeal may be dismissed unless a response was filed showing grounds for continuing the appeal.  No response has been filed.

This Court does not have jurisdiction to review an order in a criminal case unless that jurisdiction is expressly granted by the Texas Constitution or by statute.  See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008); Everett, 82 S.W.3d at 735.  No statute vests this Court with jurisdiction over an appeal from an order denying a motion for judgment nunc pro tunc.  Accordingly, the appeal is dismissed for want of jurisdiction.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal dismissed

Opinion delivered and filed June 24, 2009

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[CR25]

rt determines from the petition . . . that the relator is not entitled to the relief sought, the court must deny the petition.” Tex. R. App. P. 52.8(a). Their focus is on the nature of the ruling.

      My focus is on why are we ruling. There is no question that if we are ruling on the petition, even if it is for some procedural defect, that denial is the proper ruling. However, if we are ruling on some aspect of the proceeding other than the contents of the petition, then we are not limited by the rule.

      In this instance, it is clear that the document was filed upon the proviso that the petitioner would remedy a defect that would otherwise have prevented the filing of the petition. We are not ruling on the petition. We are ruling that because the defect was not cured we will not even consider the request for relief.

      I also note that other courts have not read Texas Rule of Appellate Procedure 52.8 as prohibiting their dismissal of an original proceeding. In re The Dallas Morning News, Inc., 10 S.W.3d 298 (Tex. 1999)(stating “The Court of Appeals should have dismissed Kaiser’s mandamus petition for want of jurisdiction . . .”); In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999); In re Texas Board of Pardons and Paroles, 989 S.W.2d 360 (Tex. 1998); Ex parte Garcia, 988 S.W.2d 240 (Tex. Crim. App. 1999); In re Melchor, 2000 WL 424319 (Tex. App.—Houston [1^st Dist.], 2000, orig. proceeding); In re Carry, 1998 WL 225286 (Tex. App.—Dallas 1998, orig. proceeding). This issue was not the subject of any particular discussion in any of these cases, and the issue may not have been drawn to the courts attention. Nonetheless, the courts clearly elected to dismiss original proceedings rather than deny them. The majority herein contends that the only proper ruling is a denial.

      Denial is defined as: “A refusal or rejection; esp., a court’s refusal to grant a request presented in a motion or petition.” Black’s Law Dictionary 445 (7th ed. 1999). This implies a reaction based upon the request. Dismiss is defined as: “To send (something) away; specif, to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved.” Black’s Law Dictionary 482 (7th ed. 1999). The majority is sending this filing, which purports to be a petition for writ of mandamus, away without having ever considered any aspect of it, other than that it does not meet the requirements to properly have been filed.

      Because the petition in this case was only provisionally filed subject to the correction of the lack of a certificate of service, it is my opinion that we have not determined “from the petition that the relator is not entitled to the relief sought.” We are not limited to a denial of the petition. It should be dismissed.

                                                                               TOM GRAY

                                                                               Justice

Dissenting opinion delivered and filed September 20, 2000

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