Rudy Lopez v. State

• Court: Court of Appeals of Texas
• Decided: April 4, 2019
• Docket: 05-19-00096-CR
• Status: Published

Opinion

DISMISS; Opinion Filed April 4, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00096-CR No. 05-19-00097-CR RUDY LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3 Dallas County, Texas Trial Court Cause Nos. F93-39883-R & F91-44984-R

MEMORANDUM OPINION Before Justices Myers, Osborne, and Nowell Opinion by Justice Myers Rudy Lopez appeals his convictions for sexual assault of a child and aggravated sexual

assault of a child younger than 14 years of age. On January 23, 2019, appellant’s pro se notice

of appeal was filed with this Court, stating he was appealing the trial court’s refusal to take action

on his motion for judgment nunc pro tunc filed with both case numbers listed. After reviewing the

notice of appeal, we notified appellant and the Dallas County District Attorney’s Office that we

had concerns regarding our jurisdiction and requested a letter brief from each. Appellant

responded, arguing that the Court has jurisdiction over appeals of denials of motions for judgment

nunc pro tunc.

An appellate court has jurisdiction to determine an appeal only if the appeal is authorized

by law. Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App. 2008). When the appellate

court’s jurisdiction is not legally invoked, the court’s power to act is as absent as if it did not exist. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996). Appellate courts may consider

criminal appeals only after final conviction or the entry of a narrow set of appealable interlocutory

orders. TEX. R. APP. P. 26.2(a)(1); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998,

no pet.).

The clerk’s records in these appeals show appellant filed a motion for judgment nunc pro

tunc on January 4, 2019. Eighteen days later, he filed his notice of appeal, stating he was appealing

the denial of his motion for judgment nunc pro tunc. Our review of the clerk’s records shows there

has been no ruling on appellant’s January 4, 2019 motions. Because there is no written order, we

conclude we lack jurisdiction. See Nikrasch v. State, 698 S.W.2d 443, 450 (Tex. App.—Dallas

1985, no pet.) (court of appeals has no jurisdiction over appeal absent written judgment or order).

We dismiss these appeals.

/Lana Myers/ LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 190096F.U05

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

RUDY LOPEZ, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-19-00096-CR V. Trial Court Cause No. F93-39883-R. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Osborne and Nowell participating.

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

Judgment entered this 4th day of April, 2019.

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

RUDY LOPEZ, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-19-00097-CR V. Trial Court Cause No. F91-44984-R. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Osborne and Nowell participating.

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

–4–