Kemone Duane Rodgers v. State

• Court: Court of Appeals of Texas
• Decided: August 21, 2019
• Docket: 05-19-00613-CR
• Status: Published

Opinion

Dismissed; Opinion Filed August 21, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00613-CR

KEMONE DUANE RODGERS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 6 Dallas County, Texas Trial Court Cause No. MA16-18372-G

MEMORANDUM OPINION Before Justices Myers, Molberg, and Carlyle Opinion by Justice Carlyle Kemone Duane Rodgers filed a document entitled “Notice of Interlocutory Appeal for

‘Defendant’s Motion to Set Aside Complaint’” in this Court on May 23, 2019. In the motion,

appellant states that although he presented the motion below, the trial court did not rule. He further

states “[s]ince the Trial court has failed to rule [on his motion] within 94 days after it was filed . .

. it is deemed denied.”

A clerk’s record was filed June 5, 2019. After reviewing the record, we had concerns

regarding our jurisdiction, specifically that there is no final judgment or order to appeal. We

notified the parties and asked for jurisdictional letter briefs. Neither side responded.

An appellate court has jurisdiction to determine an appeal only if the appeal is authorized

by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). When the appellate court’s jurisdiction is not legally invoked, the court’s power to act is as absent as if it did not exist.

Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Appellate courts may consider

criminal appeals only after final conviction or the entry of a narrow set of appealable interlocutory

orders. TEX. R. APP. P. 25.2(a)(2), 26.2(a)(1); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—

Dallas 1998, no pet.).

The clerk’s record in this appeal shows that, although represented by appointed counsel,

appellant filed a pro se “Motion to Set Aside Complaint” on February 18, 2019. On April 2, 2019,

while he was still represented by appointed counsel, he filed a letter requesting a hearing on his

motion. On May 20, 2019, the trial court granted appellant’s motion to suppress; the following

day, appellant filed an hand-written affidavit, stating the trial court “declined to allow [him] to

present [his] motion” and that he would be representing himself from that point forward. Our

review of the clerk’s record shows there has been no ruling on appellant’s February 18, 2019

motion. Because there is no written order, we conclude we lack jurisdiction. See State v.

Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012) (concluding that lack of written order

leaves court of appeals without jurisdiction over appeal); Nikrasch v. State, 698 S.W.2d 443, 450

(Tex. App.—Dallas 1985, no pet.) (court of appeals has no jurisdiction over appeal absent written

judgment or order).

We dismiss this appeal.

/Cory L. Carlyle/ CORY L. CARLYLE Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 190613F.U05

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

KEMONE DUANE RODGERS, Appellant On Appeal from the County Criminal Court No. 6, Dallas County, Texas No. 05-19-00613-CR V. Trial Court Cause No. MA16-18372-G. Opinion delivered by Justice Carlyle, THE STATE OF TEXAS, Appellee Justices Myers and Molberg participating.

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

Judgment entered this 21st day of August, 2019.

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