Lavace Durell Morgan AKA Lavance Durell Jenkins v. the State of Texas ( 2022 )

DISMISSED and Opinion Filed November 4, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01115-CR
LAVACE DURELL MORGAN AKA LAVANCE DURELL JENKINS,
Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 21838
MEMORANDUM OPINION
Before Justices Molberg, Partida-Kipness, and Carlyle
Opinion by Justice Molberg
On October 18, 2022, Lavace Durell Morgan aka Lavance Durell Jenkins filed
a pro se “Motion for Appointment of Counsel on Nunc Pro Tunc and Notice to
Appeal Nunc Pro Tunc.” The notice of appeal portion of the document states the trial
court “has entered a Judgment to the Nunc Pro Tunc and defendant seeks to appeal
the decision.”
On October 24, 2022, the Court entered an order observing that the trial
court’s online docket sheet shows appellant filed a motion for nunc pro tunc relief
on July 28, 2022, but it does not show any ruling on the motion. The Court ordered
the H u n t County D i s t r i c t Clerk to review its records to determine if the trial
court had entered a judgment or written order ruling on appellant’s motion and then
file either a verification that the trial court has not entered a judgment or written
order or else a clerk’s record containing the documents relevant to review appellant’s
appeal.
On October 26, 2022, the district clerk filed a clerk’s record containing the
Court’s October 24, 2022 order, an order transferring the case from the 354th
Judicial District Court to the 196th Judicial District Court, a copy of the motion for
judgment nunc pro tunc, and appellant’s notice of appeal.
The order of transfer is signed by Keli M. Aiken, the presiding judge of the
354th Judicial District Court. The order of transfer is also signed as accepted by J.
Andrew Bench, the presiding judge of the 196th Judicial District Court, although it
contains a clerical error describing him as being presiding judge of the 354th Judicial
District Court. On the copy of appellant’s motion in the clerk’s record, we observe
that at the top of the first page of the motion for nunc pro tunc judgment, there is a
handwritten statement reading “No Action Taken–-JAB” followed by a handwritten
date for August 2022.
This Court has no jurisdiction to entertain an appeal unless the trial court has
entered a judgment or appealable order. See TEX. R. APP. P. 26.2(a)(1); State v.
Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012); Henderson v. State,
153 S.W.3d 735, 735–36 (Tex. App.—Dallas 2005, no pet.). The entry of a nunc pro
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tunc judgment is an appealable order. Blanton v. State, 369 S.W.3d 894, 904 (Tex.
Crim. App. 2012). In contrast, the trial court’s denial of relief or refusal to rule on a
motion for judgment nunc pro tunc does not create an appealable order that may
serve as a basis for appellate jurisdiction. See Desilets v. State, 495 S.W.3d 553, 554
(Tex. App.—Beaumont 2016, no pet.) (dismissing appeals from order denying
request for judgments nunc pro tunc); Sanchez v. State, 112 S.W.3d 311 (Tex.
App.—Corpus Christi-Edinburg 2003, no pet.) (per curiam) (same); see also Lopez
v. State, No. 05-19-00096-CR, 2019 WL 1486919, at *1 (Tex. App.—Dallas Apr. 4,
2019, no pet.) (mem. op., not designated for publication) (dismissing appeal where
record showed trial court had not ruled on motion seeking nunc pro tunc relief).
Because the record in this case shows the trial court chose to take no action
on appellant’s motion and did not sign an appealable order, we have no jurisdiction
to entertain appellant’s appeal. See Henderson, 153 S.W.3d at 735–36; Desilets, 495
S.W.3d at 554; see also Lopez, 2019 WL 1486919, at *1.
We dismiss the appeal for want of jurisdiction.
/Ken Molberg//
KEN MOLBERG
221115f.u05 JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAVACE DURELL MORGAN On Appeal from the 354th Judicial
AKA LAVANCE DURELL District Court, Hunt County, Texas
JENKINS, Appellant Trial Court Cause No. 21838.
Opinion delivered by Justice
No. 05-22-01115-CR V. Molberg. Justices Partida-Kipness
and Carlyle participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 4th day of November, 2022.
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