Opinion
NUMBER 13-13-00399-CR
2013-09-26
GERARDO LEYVA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 26th District Court
of Williamson County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion Per Curiam
Gerardo Leyva, proceeding pro se, attempts to appeal from the trial court's order of May 22, 2013 denying his motion for nunc pro tunc judgment. His appeal was transferred to this Court from the Third Court of Appeals by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (West Supp. 2011) (delineating the jurisdiction of appellate courts); TEX. GOV'T CODE ANN. § 73.001 (West 2005) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer). We dismiss the appeal for want of jurisdiction.
Appellant has already appealed his conviction by direct appeal. See Leyva v. State, No. 03-98-00161-CR, 1999 WL 394897 (Tex. App.—Austin June 17, 1999, no pet.) (not designated for publication) (affirming appellant's conviction for aggravated sexual assault). In this appeal, appellant is attempting to appeal the trial court's denial of a motion for nunc pro tunc judgment. On August 14, 2013, the Clerk of this Court notified appellant that it appeared that the order that he was attempting to appeal was not an appealable order and that the appeal would be dismissed if the defect was not corrected within ten days from the date of receipt of the Court's directive. Appellant filed both a response to this Court's notice and a "Motion to Proceed Pro Se and Issue Order of Abatement." Appellant's response fails to establish that appellant has a right to appeal the order denying the motion for nunc pro tunc judgment. Appellant asserts that the appeal is criminal in nature and his notice of appeal was timely filed. Appellant also seeks additional time to correct the defect and requests that we instruct the trial court to conduct a hearing regarding the appointment of counsel for purposes of this appeal. To the extent that appellant's response seeks affirmative relief, such relief is denied. Moreover, appellant's "Motion to Proceed Pro Se and Issue Order of Abatement" is likewise DENIED.
An order denying a motion seeking nunc pro tunc relief is not appealable. See Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App.2008); State v. Ross, 953 S.W.2d 748, 752 (Tex. Crim. App.1997); see also Sanchez v. State, 112 S.W.3d 311, 312 (Tex. App.—Corpus Christi 2003, no pet.) (stating that the court lacked jurisdiction to review an order denying a request for judgment nunc pro tunc); Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco 2002, pet. ref'd) (same); Allen v. State, 20 S.W.3d 164, 165 (Tex. App.—Texarkana 2000, no pet.) (holding that an order denying nunc pro tunc relief is not appealable, the court of appeals has no jurisdiction over such an appeal, and the correct way to attack such an order is by mandamus).
The Court, having examined and fully considered the documents on file in this cause, is of the opinion that we lack jurisdiction over this cause. Accordingly, we DISMISS this appeal for WANT OF JURISDICTION.
PER CURIAM Do not publish.
See TEX. R. APP. P. 47.2(b).