Document Info

DocketNumber: 05-19-00550-CR

Filed Date: 8/22/2019

Status: Precedential

Modified Date: 8/26/2019

  • Dismissed; Opinion Filed August 22, 2019
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-19-00550-CR
    TEMMIE GENE CROW, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 15th Judicial District Court
    Grayson County, Texas
    Trial Court Cause No. 065451
    MEMORANDUM OPINION
    Before Justices Bridges, Brown, and Nowell
    Opinion by Justice Nowell
    Temmie Gene Crow was convicted of failure to register as a sex offender and assessed
    punishment, enhanced by two prior felony convictions, at eighteen years in prison and a $300 fine.
    The Court has before it appellant’s notice of appeal from the denial of his pro se motion nunc pro
    tunc to correct “an error in the sentencing and judgment and indictment.” We conclude we lack
    jurisdiction over the appeal.
    “Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,
    
    918 S.W.2d 519
    , 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally
    invoked, and, if it is not, the power of the court to act is as absent as if it did not exist. See 
    id. at 523.
    “The standard to determine whether an appellate court has jurisdiction to hear and determine
    a case ‘is not whether the appeal is precluded by law, but whether the appeal is authorized by
    law.’” Blanton v. State, 
    369 S.W.3d 894
    , 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 
    271 S.W.3d 694
    , 696–97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily
    created right. See McKinney v. State, 
    207 S.W.3d 366
    , 374 (Tex. Crim. App. 2006); Griffin v.
    State, 
    145 S.W.3d 645
    , 646 (Tex. Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02
    (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by
    defendant). Appellate courts may consider appeals by criminal defendants only after conviction or
    the entry of an appealable order. See Wright v. State, 
    969 S.W.2d 588
    , 589 (Tex. App.—Dallas
    1998, no pet.).
    In this case, the trial court denied appellant’s motion for nunc pro tunc. Although appellant
    filed a timely notice of appeal, the denial of a motion seeking nunc pro tunc relief is not appealable.
    See Sanchez v. State, 
    112 S.W.3d 311
    , 312 (Tex. App.—Corpus Christi 2003, no pet.) (per curiam);
    Everett v. State, 
    82 S.W.3d 735
    , 735 (Tex. App.—Waco 2002, no pet.); Allen v. State, 
    20 S.W.3d 164
    , 165 (Tex. App.—Texarkana 2000, no pet.). See also Abbott v. State, 
    271 S.W.3d 694
    , 696–
    97 (Tex. Crim. App. 2008) (appellate court lacked jurisdiction to review appeal order denying
    motion for additional time credit); State v. Ross, 
    953 S.W.2d 748
    , 752 (Tex. Crim. App. 1997)
    (suggesting mandamus proper way to challenge denial of nunc pro tunc judgment).
    We dismiss the appeal for want of jurisdiction.
    /Erin A. Nowell/
    ERIN A. NOWELL
    Do Not Publish                                      JUSTICE
    TEX. R. APP. P. 47.2(b)
    190550F.U05
    –2–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    TEMMIE GENE CROW, Appellant                       On Appeal from the 15th Judicial District
    Court, Grayson County, Texas
    No. 05-19-00550-CR         V.                     Trial Court Cause No. 065451.
    Opinion delivered by Justice Nowell,
    THE STATE OF TEXAS, Appellee                      Justices Bridges and Brown participating.
    Based on the Court’s opinion of this date, we DISMISS this appeal for want of
    jurisdiction.
    Judgment entered this 22nd day of August, 2019.
    –3–