Aaron Malone v. State

• Court: Court of Appeals of Texas
• Decided: September 18, 2013
• Docket: 05-13-01234-CR
• Status: Published

Opinion

Dismiss and Opinion Filed September 18, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01234-CR

AARON MALONE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-39160-I

MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Evans Opinion by Justice Evans Aaron Malone was convicted of aggravated sexual assault with a deadly weapon and

sentenced to sixty year’s imprisonment. The conviction was affirmed on direct appeal. Malone

v. State, No. 05-11-00157-CR, 2013 WL 427354 (Tex. App.––Dallas Feb. 5, 2013, no pet.) (not

designated for publication). On August 8, 2013, appellant filed a pro se motion for a judgment

nunc pro tunc seeking to have the affirmative deadly weapon finding deleted from the trial

court’s judgment. The trial court denied appellant’s motion by written order on August 15, 2013,

and this appeal followed.

“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 not, the power of the court to act is as absent as if it did not exist. See id. at 523. As a general rule, an appellate court may consider appeals by criminal defendants only

after conviction. Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.). A

court of appeals has no jurisdiction over an appeal absent a written judgment or an appealable

order. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010); Nikrasch v. State,

698 S.W.2d 443, 450 (Tex. App.––Dallas 1985, no pet.).

An order denying 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 (Tex. App. ––Waco 2002, pet. ref’d); Allen v. State, 20 S.W.3d 164, 165

(Tex. App.––Texarkana 2000, no pet.). See also State v. Ross, 953 S.W.2d 748, 751–52 (Tex.

Crim. App. 1997) (suggesting mandamus as way to seek relief from order denying motion for

judgment nunc pro tunc). Accordingly, we dismiss the appeal for want of jurisdiction.

/David Evans/ DAVID EVANS JUSTICE

Do Not Publish TEX. R. APP. P. 47 131234F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AARON MALONE, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-13-01234-CR V. Trial Court Cause No. F08-39160-I. Opinion delivered by Justice Evans, THE STATE OF TEXAS, Appellee Justices O’Neill and Lang-Miers participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 18th day of September, 2013.

–3–