Birshal Dion Mitchell v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2016
• Docket: 01-15-00402-CR
• Status: Published

Opinion

Opinion issued June 23, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-15-00402-CR ——————————— BIRSHAL DION MITCHELL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 586939

MEMORANDUM OPINION

In 1991, appellant, Birshal Dion Mitchell, without an agreed recommendation

from the State, pleaded guilty to the felony offense of aggravated robbery.1 The trial

1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). court deferred an adjudication of appellant’s guilt and placed him on probation for a

period of ten years. After the State moved to adjudicate guilt, the trial court found

that appellant had violated the terms of his probation, adjudicated him guilty, and

assessed punishment at confinement for twenty years and a $1,000.00 fine.

In March 2015, appellant filed a pro se motion for judgment nunc pro tunc,

contending that his street-time credit for time spent out of custody while on parole

was not properly determined. See Ex parte Spann, 132 S.W.3d 390, 392 n.2 (Tex.

Crim. App. 2004) (“Street-time credit refers to calendar time a person receives

towards his sentence for days spent on parole or mandatory supervision.”). The trial

court denied the motion. Appellant filed a pro se notice of appeal.

We dismiss the appeal for want of jurisdiction.

The right to appeal in a criminal case is a statutorily created right. See TEX.

CODE CRIM. PROC. ANN. art. 44.02 (West 2006); Bayless v. State, 91 S.W.3d 801,

805 (Tex. Crim. App. 2002). Generally, a criminal defendant may appeal only from

a final judgment. State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990).

The denial of a motion for judgment nunc pro tunc is not an appealable order. See

Desilets v. State, No. 09-16-00104-CR, 2016 WL 3020131, at *1 (Tex. App.—

Beaumont May 25, 2016, no pet. h.) (citing Sellers, 790 S.W.2d at 321 n.4; Sanchez

v. State, 112 S.W.3d 311, 311–12 (Tex. App.—Corpus Christi 2003, no pet.); Everett

v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. dism’d)); see also Abbott

2 v. State, 271 S.W.3d 694, 697 (Tex. Crim. App. 2008) (concluding court of appeals

lacked jurisdiction to decide merits of appeal of post-judgment order denying

appellant’s time-credit motion).

Accordingly, we dismiss this appeal for want of jurisdiction. See TEX. R. APP.

P. 43.2(f). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).