Peter Burton v. State

Opinion

MEMORANDUM OPINION

No. 04-11-00890-CR

Peter BURTON,

Appellant

v.

The STATE of Texas,

Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 1990CR0764A Honorable Melisa Skinner, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 15, 2012 DISMISSED FOR LACK OF JURISDICTION Appellant filed a notice of appeal seeking to appeal the trial court’s order denying his motion for a judgment nunc pro tunc. The denial of a motion for a judgment nunc pro tunc is not an appealable order. See Caceras v. State, No. 04-10-00132-CR, 2010 WL 726884, at *1 (Tex. App.—San Antonio Mar. 3, 2010, no pet.) (not designated for publication); Castor v. State, 205 S.W.3d 666, 667 (Tex. App.—Waco 2006, no pet.). The proper remedy to obtain review of the

04-11-00890-CR

denial of a motion for judgment nunc pro tunc is by petition for writ of mandamus. Caceras, 2010 WL 726884, at *1; Castor, 205 S.W.3d at 667.

On January 24, 2012, we ordered appellant to show cause in writing by February 7, 2012, why this appeal should not be dismissed for lack of jurisdiction. On February 6, 2012, appellant filed a motion requesting an extension of time to file his petition for writ of mandamus. Appellant appears to have misunderstood this court’s prior order. Appellant was ordered to show cause why this appeal should not be dismissed for lack of jurisdiction because the filing of a petition for writ of mandamus is the proper way to obtain review of the denial of a motion for judgment nunc pro tunc. The appellate rules governing the filing of a mandamus proceeding do not contain a specific deadline. See TEX. R. APP. P. 52. Accordingly, this appeal is dismissed for lack of jurisdiction without prejudice to appellant’s filing of a petition for writ of mandamus seeking relief from the trial court’s denial of his motion for judgment nunc pro tunc.

PER CURIAM

DO NOT PUBLISH