Robbie Loftin v. State

• Court: Court of Appeals of Texas
• Decided: February 10, 2011
• Docket: 02-10-00531-CR
• Status: Published

Opinion

02-10-531-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00531-CR

Robbie Loftin		APPELLANT
V.
The State of Texas		STATE

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FROM County Criminal Court No. 5 OF Denton COUNTY

MEMORANDUM OPINION[1]

          On September 14, 2010, Appellant Robbie Loftin filed a pro se “Motion for Judgment Nunc Pro Tunc” in the trial court, contending that the September 1, 2008 judgment of his conviction for driving while intoxicated erroneously states that he was convicted of a first degree felony instead of a third degree felony, which the indictment had alleged.  On December 8, 2010, Loftin filed a pro se notice of appeal in which he stated that his motion for judgment nunc pro tunc had been denied by operation of law.  On December 20, 2010, we notified Loftin of our concern that we lack jurisdiction over this appeal because (1) he had not provided this court with an order showing that the motion for judgment nunc pro tunc had been denied and (2) the denial of a motion for judgment nunc pro tunc may not be appealable.  We informed Loftin that the appeal could be dismissed for want of jurisdiction unless he or any party desiring to continue the appeal filed a response on or before January 4, 2011, showing grounds for continuing the appeal.  Loftin filed a response, but it fails to show grounds for continuing the appeal.

          We do not have appellate jurisdiction over the denial of a motion for judgment nunc pro tunc.  Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. dism’d); Vernon v. State, No. 10-09-00292-CR, 2009 WL 3645710, at *1 (Tex. App.—Waco Nov. 4, 2009, no pet.) (mem. op., not designated for publication).  The appropriate remedy by which to obtain review of the denial of a nunc pro tunc motion is a petition for writ of mandamus.  Vernon, 2009 WL 3645710, at *1 (citing Ex parte Forooghi, 185 S.W.3d 498, 499 (Tex. Crim. App. 2006) (Johnson, J., concurring statement)).  Accordingly, we dismiss this appeal for want of jurisdiction.

PER CURIAM

PANEL:  MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  February 10, 2011

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          [1]See Tex. R. App. P. 47.4.