Larry B. Johnson v. State

• Court: Court of Appeals of Texas
• Decided: January 27, 2017
• Docket: 05-17-00073-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed January 27, 2017.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00071-CR No. 05-17-00072-CR No. 05-17-00073-CR No. 05-17-00074-CR LARRY B. JOHNSON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F08-11151-H, F08-11221-H, F09-00661-H & F09-00662-H

MEMORANDUM OPINION Before Justices Francis, Fillmore, and Stoddart Opinion by Justice Fillmore On January 20, 2017, appellant filed his notices of appeal in these causes. In his notices,

appellant states he is appealing from a January 11, 2017 order denying his motion for DNA

testing pursuant to article 64 of the code of criminal procedure. However, the trial court has not

yet ruled on appellant’s motion. Accordingly, we dismiss these appeals for want of jurisdiction.

“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. The right to appeal in a criminal case is a statutorily created right. See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex.

Crim. App. 2004); see also TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate

courts may consider appeals by criminal defendants only after conviction or the entry of an

appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).

Although appellant claims the trial court denied his motion for DNA testing, the trial

court has not yet ruled on appellant’s motion. As this Court has stated previously, we have no

jurisdiction over an appeal absent a written judgment or appealable order. See Nikrasch v. State,

698 S.W.2d 443, 450 (Tex. App.—Dallas 1985, no pet.); Wright, 969 S.W.2d at 450. Absent a

written order denying appellant’s motion, this Court has no jurisdiction. See Nikrasch, 698

S.W.2d at 450.

We dismiss these appeals for want of jurisdiction.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

170071F.U05

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

LARRY B. JOHNSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas. No. 05-17-00071-CR V. Trial Court Cause No. F08-11151-H. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Francis and Stoddart participating.

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

Judgment entered this 27th day of January, 2017.

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

LARRY B. JOHNSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas. No. 05-17-00072-CR V. Trial Court Cause No. F08-11221-H. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Francis and Stoddart participating.

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

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

LARRY B. JOHNSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas. No. 05-17-00073-CR V. Trial Court Cause No. F09-00661-H. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Francis and Stoddart participating.

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

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

LARRY B. JOHNSON, Appellant On Appeal from the Criminal District Court No. 1, Dallas County, Texas. No. 05-17-00074-CR V. Trial Court Cause No. F09-00662-H. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Francis and Stoddart participating.

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

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