Arthur David Lowe v. State

• Court: Court of Appeals of Texas
• Decided: August 30, 2018
• Docket: 01-18-00753-CR
• Status: Published

Opinion

Opinion issued August 30, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00753-CR NO. 01-18-00754-CR ——————————— ARTHUR DAVID LOWE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court Harris County, Texas Trial Court Case Nos. 659154 & 659156 MEMORANDUM OPINION Appellant, Arthur David Lowe, incarcerated and proceeding pro se, attempts

to appeal from the trial court’s order denying his motion for nunc pro tunc judgment

in these two related cases.1 If the trial court had signed a nunc pro tunc judgment,

that would be an appealable order. See Blanton v. State, 369 S.W.3d 894, 904 (Tex.

2012) (“A nunc pro tunc judgment is an appealable order under Article 44.02 if the

appeal is timely filed.”). However, the trial court’s signed order denied appellant’s

motion for nunc pro tunc judgment in both cases, which is not an appealable order,

but may be challenged via petition for a writ of mandamus.2 See Ex parte Florence,

319 S.W.3d 695, 696 (Tex. Crim. App. 2010) (“If the trial court denies the motion

for judgment nunc pro tunc or fails to respond, relief may be sought by filing an

application for writ of mandamus in a court of appeals.”); see, e.g., Schofield v. State,

No. 01-14-00321-CR, 2014 WL 2538693, at *1 (Tex. App.—Houston [1st Dist.]

June 5, 2014, no pet.) (per curiam) (mem. op., not designated for publication)

(dismissing for want of jurisdiction appeal from denial of motion for judgment nunc

pro tunc).

1 Appellate cause number 01-18-00753-CR; trial court cause number 659154. Appellate cause number 01-18-00754-CR; trial court cause number 659156. 2 Appellant filed a premature brief attaching copies of both his motion for judgment nunc pro tunc and the order. The Clerk of this Court requested that the district clerk file a special clerk’s record containing certified copies of the motion and order, which was filed on August 24, 2018.

2 Accordingly, we dismiss these appeals for want of jurisdiction.3 We dismiss

any pending motions as moot.

PER CURIAM Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).

3 This Court previously denied appellant’s pro se mandamus petitions challenging the trial court’s failure to rule on his motion for judgment nunc pro tunc in the same underlying trial court cause numbers 659154 and 659156. See In re Arthur David Lowe, Nos. 01-17-00624-CR & 01-17-00624-CR, 2016 WL 3220437, at *1 (Tex. App.—Houston [1st Dist.] Sept. 28, 2017, orig. proceeding) (per curiam) (mem. op., not designated for publication). 3