Franzwa Miller v. State

Opinion

Dismiss and Opinion Filed September 11, 2013

S In The

Court of Appeals

Fifth District of Texas at Dallas No. 05-13-01160-CR

FRANZWA MILLER, Appellant V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas

Trial Court Cause No. F09-40846-J

MEMORANDUM OPINION

Before Justices FitzGerald, Francis, and Myers Opinion by Justice FitzGerald Franzwa Miller was convicted of capital murder and sentenced to life imprisonment in

2010. The judgment of conviction was affirmed by this Court on direct appeal. Miller v. State,

No. 05-10-01086-CR, 2012 WL 3241764 (Tex. App.––Dallas Aug. 10, 2012, pet. ref’d) (mem.

op., not designated for publication). On August 21, 2013, appellant filed a notice of appeal

complaining of the trial court’s failure to rule on several post-conviction motions he filed. 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 not, the power of the court to act is as absent as if it did not exist. See id.

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.).

Appellant’s notice of appeal complains of the trial court’s failure to rule on certain post-

conviction motions. The trial court’s failure to rule is not an appealable matter. See generally

Gutierrez, 307 S.W.3d at 321; Nikrasch, 698 S.W.2d at 450.

We dismiss the appeal for want of jurisdiction.

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

Do Not Publish TEX. R. APP. P. 47 131160F.U05

S

Court of Appeals

Fifth District of Texas at Dallas JUDGMENT

FRANZWA MILLER, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-13-01160-CR V. Trial Court Cause No. F09-40846-J.

Opinion delivered by Justice FitzGerald, THE STATE OF TEXAS, Appellee Justices Francis and Myers participating.

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

Judgment entered September 11, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE