Kemone Duane Rodgers v. State ( 2019 )

Dismissed; Opinion Filed August 21, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00613-CR
KEMONE DUANE RODGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 6
Dallas County, Texas
Trial Court Cause No. MA16-18372-G
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Carlyle
Kemone Duane Rodgers filed a document entitled “Notice of Interlocutory Appeal for
‘Defendant’s Motion to Set Aside Complaint’” in this Court on May 23, 2019. In the motion,
appellant states that although he presented the motion below, the trial court did not rule. He further
states “[s]ince the Trial court has failed to rule [on his motion] within 94 days after it was filed . .
. it is deemed denied.”
A clerk’s record was filed June 5, 2019. After reviewing the record, we had concerns
regarding our jurisdiction, specifically that there is no final judgment or order to appeal. We
notified the parties and asked for jurisdictional letter briefs. Neither side responded.
An appellate court has jurisdiction to determine an appeal only if the appeal is authorized
by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). When the appellate
court’s jurisdiction is not legally invoked, the court’s power to act is as absent as if it did not exist.
Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Appellate courts may consider
criminal appeals only after final conviction or the entry of a narrow set of appealable interlocutory
orders. TEX. R. APP. P. 25.2(a)(2), 26.2(a)(1); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—
Dallas 1998, no pet.).
The clerk’s record in this appeal shows that, although represented by appointed counsel,
appellant filed a pro se “Motion to Set Aside Complaint” on February 18, 2019. On April 2, 2019,
while he was still represented by appointed counsel, he filed a letter requesting a hearing on his
motion. On May 20, 2019, the trial court granted appellant’s motion to suppress; the following
day, appellant filed an hand-written affidavit, stating the trial court “declined to allow [him] to
present [his] motion” and that he would be representing himself from that point forward. Our
review of the clerk’s record shows there has been no ruling on appellant’s February 18, 2019
motion. Because there is no written order, we conclude we lack jurisdiction. See State v.
Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012) (concluding that lack of written order
leaves court of appeals without jurisdiction over appeal); Nikrasch v. State, 698 S.W.2d 443, 450
(Tex. App.—Dallas 1985, no pet.) (court of appeals has no jurisdiction over appeal absent written
judgment or order).
We dismiss this appeal.
/Cory L. Carlyle/
CORY L. CARLYLE
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
190613F.U05
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEMONE DUANE RODGERS, Appellant On Appeal from the County Criminal Court
No. 6, Dallas County, Texas
No. 05-19-00613-CR V. Trial Court Cause No. MA16-18372-G.
Opinion delivered by Justice Carlyle,
THE STATE OF TEXAS, Appellee Justices Myers and Molberg participating.
Based on the Court’s opinion of this date, we DISMISS this appeal.
Judgment entered this 21st day of August, 2019.
–3–