Rotolet McGee v. State

Opinion

DISMISS; Opinion Filed April 22, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01684-CR

ROTOLET MCGEE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F01-73192-R

MEMORANDUM OPINION Before Justices Moseley, O'Neill, and Lewis Opinion by Justice Moseley Rotolet McGee pleaded guilty to aggravated robbery. The trial court deferred

adjudicating appellant’s guilt and placed him on community supervision. The trial court later

adjudicated appellant guilty and sentenced him to forty-five years’ imprisonment. On June 15,

2012, appellant filed a pro se motion for reformation of his judgment, seeking to have his

sentence reduced from forty-five years to ten years. The trial court denied appellant the relief

requested and this appeal followed. Because it appeared we lacked jurisdiction over the appeal,

we asked the parties to file letter briefs addressing our jurisdiction.

The trial court appointed counsel for appellant. Counsel filed a letter brief conceding the

trial court’s order denying the motion to reform the judgment has not been held to be an

appealable order. Counsel asserts the allegations in appellant’s motion are sufficient for this Court to construe as an application for writ of habeas corpus, but concedes that only the Texas

Court of Criminal Appeals has jurisdiction over post-conviction habeas corpus proceedings. 1

“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. As a general rule, an appellate court may consider appeals by criminal defendants only

after conviction. Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.). A

court of appeals has no jurisdiction over an appeal absent a written judgment or an appealable

order. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010); Nikrasch v. State,

698 S.W.2d 443, 450 (Tex. App.––Dallas 1985, no pet.). The types of orders from which

appeals are permitted are orders deferring adjudication of guilt; orders in certain habeas corpus,

bail, and extradition proceedings; and orders denying motions for judgments nunc pro tunc. See

generally TEX. CODE CRIM. P. ANN. 11.072 (West 2005) (habeas corpus); TEX. R. APP. P. 31

(habeas corpus, bail, extradition); Blanton v. State, 369 S.W.3d 894, 904 (Tex. Crim. App. 2012)

(order denying motion for judgment nunc pro tunc); Manuel v. State, 994 S.W.2d 658, 661–62

(Tex. Crim. App. 1999) (deferred adjudication order).

The trial court’s order denying appellant’s motion for a sentence reduction is not one of

the enumerated appealable orders. Absent an appealable order, we have no jurisdiction over the

appeal. See Gutierrez, 307 S.W.3d at 321; Nikrasch, 698 S.W.2d at 450.

1 Counsel states that nothing prevents this Court from ordering the trial court to treat appellant’s motion as an application for writ of habeas corpus. However, as counsel stated, we do not have jurisdiction over post-conviction habeas corpus proceedings, and there are specific procedures that must be followed in filing such applications. Therefore, we decline counsel’s invitation to order the trial court to treat appellant’s motion as an application for writ of habeas corpus.

–2– We dismiss the appeal for want of jurisdiction.

/Jim Moseley/ JIM MOSELEY JUSTICE

Do Not Publish TEX. R. APP. P. 47 121684F.U05

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

ROTOLET MCGEE, Appellant On Appeal from the 265th Judicial District Court, Dallas County, Texas No. 05-12-01684-CR V. Trial Court Cause No. F01-73192-R. Opinion delivered by Justice Moseley, THE STATE OF TEXAS, Appellee Justices O’Neill and Lewis participating.

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

Judgment entered this 22nd day of April, 2013.

–4–