Michael Kennedy v. State

PER CURIAM HEADING

                  NO. 12-05-00405-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

  MICHAEL KENNEDY,                                     §     APPEAL FROM THE THIRD

APPELLANT

V.                                                                         §     JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE                                                        §     ANDERSON COUNTY, TEXAS

---

---

  MEMORANDUM OPINION

PER CURIAM

            Appellant was convicted of burglary and sentenced to imprisonment for twenty years. A judgment was signed in Appellant’s case on October 10, 1986. On March 4, 2005, the trial court, on Appellant’s motion, entered a nunc pro tunc judgment of conviction. Almost seven months later, on September 26, Appellant filed a motion to set aside the judgment and conviction in the case contending that certain records and evidence had been lost. The trial court made a docket notation on October 6, 2005 that the motion was overruled. Appellant seeks to appeal the trial court’s denial of the motion.

            On December 13, 2005, we notified Appellant that the information furnished in this appeal does not include an appealable order. See Tex. R. App. 37.1. We further informed him that the appeal would be dismissed for want of jurisdiction unless the information received in the appeal was amended on or before January 12, 2006 show the jurisdiction of this Court. See Tex. R. App. 44.3. In his response to our notice, Appellant contends that the docket sheet is a signed order. However, a docket sheet entry cannot substitute for an order. State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.–Dallas 1999, no pet.). Moreover, Appellant appealed his conviction in appellate cause number 12-86-00248-CR. That conviction became final in 1998 when we issued our mandate. Consequently, even if the trial court had signed an order denying Appellant’s motion, the order would not be appealable. See Glover v. State, No. 09-04-00104-CR, 2004 WL 1047279, at *1 (Tex. App.–Beaumont May 6, 2004, pet. ref’d) (not designated for publication) (order denying motion to vacate conviction not appealable where appellate court mandate issued six years earlier).

            Appellant has not shown the jurisdiction of this Court. Accordingly, the appeal is dismissed for want of jurisdiction. All pending motions in this appeal are overruled.

Opinion delivered January 11, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)