Nelson Isac Fernandez-Lopez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 8, 2023
• Docket: 12-23-00033-CR
• Status: Published

Opinion

NOS. 12-23-00032-CR 12-23-00033-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NELSON ISAC FERNANDEZ-LOPEZ, § APPEAL FROM THE 114TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM On January 10, 2023, Nelson Isac Fernandez-Lopez filed a notice of appeal from a judgment in which sentence was imposed on March 18, 2019. 1 On January 19, 2023, this Court notified Appellant that the notice of appeal failed to show the jurisdiction of the Court, namely, there is no final judgment or appealable order. We further notified Appellant that the appeal would be dismissed unless the information was amended on or before January 30 to show this Court’s jurisdiction. Appellant’s counsel subsequently filed a motion to dismiss the appeal, acknowledging that there are no additional final judgments or appealable orders that would support jurisdiction. However, counsel’s motion failed to contain Appellant’s signature. See TEX. R. APP. P. 42.2(a) (“appellant and his or her attorney must sign the written motion to dismiss…”); see also Ex parte Trapasso, No. 03-02-00017-CR, 2002 WL 534140, at *1, n.1 (Tex. App.—Austin Apr. 11, 2002, no pet.) (op., not designated for publication) (overruling motion to dismiss appeal because appellant had not signed motion as required by Rule 42.2(a)). This Court notified counsel of the

1 Appellant was convicted of unlawful interception, use, or disclosure of wire, oral, or electric communications and engaging in organized criminal activity. This Court affirmed his convictions. See Fernandez- Lopez v. State, Nos. 12-19-00110-CR, 12-19-00133-CR, 2020 WL 5406241 (Tex. App.—Tyler Sept. 9, 2020, pet. ref’d) (per curiam) (mem. op., not designated for publication). defect and allowed until February 24 to file a compliant amended motion, but no amended motion was ever received. Accordingly, we overrule the motion to dismiss. Nevertheless, in criminal cases, an appellate court has jurisdiction only from a final judgment of conviction, an appealable order, or where expressly granted by law. See Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008) (standard for determining jurisdiction is not whether appeal is precluded by law but whether appeal is authorized by law); see also Young v. State, No. 12-06-00189-CR, 2006 WL 1699585, at *1 (Tex. App.—Tyler June 21, 2006, no pet.) (mem. op. not designation for publication); McIntosh v. State, 110 S.W.3d 51, 52 (Tex. App.–Waco 2002, no pet.); TEX. R. APP. P. 26.2(a). Appellant previously appealed and this Court affirmed his convictions. See Fernandez-Lopez v. State, Nos. 12-19-00110-CR, 12-19- 00133-CR, 2020 WL 5406241 (Tex. App.—Tyler Sept. 9, 2020, pet. ref’d) (per curiam) (mem. op., not designated for publication). Our mandate issued on December 18, 2020 and Appellant’s convictions are final. He is not entitled to a second appeal of those same convictions. See Confer v. State, No. 03-19-00043-CR, 2019 WL 908289, at *1 (Tex. App.—Austin Feb. 22, 2019, pet. ref'd) (mem. op., not designated for publication). Accordingly, because there is no new final judgment or other appealable order over which this Court has jurisdiction, we dismiss Appellant’s appeal for want of jurisdiction. See TEX. R. APP. P. 43.2(f). Opinion delivered March 8, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 8, 2023

NO. 12-23-00032-CR

NELSON ISAC FERNANDEZ-LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-0079-18)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this Court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J COURT OF APPEALS

NO. 12-23-00033-CR

NELSON ISAC FERNANDEZ-LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-1652-18)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this Court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.