Gary Isaac v. State

Opinion

DISMISS; Opinion Filed April 2, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-13-00147-CR

GARY ISAAC, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F00-00858-N

MEMORANDUM OPINION Before Justices Bridges, FitzGerald, and Myers Opinion by Justice Myers Gary Isaac was convicted of injury to a child in 2001 and sentenced to forty years’

imprisonment. The conviction was affirmed on direct appeal. Isaac v. State, No. 05-01-01769-

CR (Tex. App.–Dallas 2003, pet. ref’d). On August 22, 2002, the trial judge entered a nunc pro

tunc order deleting the sex offender registration requirement from the judgment and giving

appellant additional back time credit. In 2012, appellant filed a motion to modify the judgment

seeking to delete a deadly weapon finding, which appellant asserts was added to the judgment by

the August 22, 2002 nunc pro tunc order. Although the trial court has not ruled on appellant’s

motion, appellant filed a notice of appeal that indicates he is giving the notice “only in the event

a final [judgment] is ordered in this action, and when no order to reform [judgment] is ordered or

when an appointment of counsel is made.” Appellant did not file a response to our letter

questioning our jurisdiction over the appeal. 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.

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 other appealable

order. See Nikrasch v. State, 698 S.W.2d 443, 450 (Tex. App.–Dallas 1985, no pet.).

In this case, there is no order ruling on appellant’s motion for nunc pro tunc judgment.

Accordingly, we have no jurisdiction over the appeal. See id.

We dismiss the appeal for want of jurisdiction.

/Lana Myers/ LANA MYERS JUSTICE

Do No Publish TEX. R. APP. P. 47 130147F.U05

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

GARY ISAAC, Appellant On Appeal from the 195th Judicial District Court, Dallas County, Texas No. 05-13-00147-CR V. Trial Court Cause No. F00-00858-N. Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices Bridges and FitzGerald participating.

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

Judgment entered this 2nd day of April, 2013.

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