Sostenes Perez Morales v. State
13-17-00488-CR
| Tex. App. | Oct 26, 2017Background
- Appellant Sostenes Perez Morales, pro se, sought to remove an affirmative deadly-weapon finding from his conviction via a motion for judgment nunc pro tunc.
- The trial court denied the nunc pro tunc motion; Morales attempted to appeal that denial.
- The Court of Appeals’ clerk notified Morales that there appeared to be no appealable order and requested correction within ten days.
- Morales filed a motion to withdraw his appeal and reserved the right to appeal later.
- The Court examined the filings and concluded it lacked jurisdiction because an order denying a nunc pro tunc judgment is not appealable.
- The Court granted the withdrawal and dismissed the appeal for lack of jurisdiction; other relief was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of a motion for judgment nunc pro tunc is an appealable order | Morales argued the judgment is erroneous due to an affirmative deadly-weapon finding and sought appellate review by appealing the denial of his nunc pro tunc motion | State argued (and court treated) that denial of a nunc pro tunc motion is not an appealable order and appellate jurisdiction is lacking | Court held it lacked jurisdiction; dismissal for want of jurisdiction |
| Whether the appeal was timely/perfected | Morales filed a notice of appeal after the denial of his nunc pro tunc motion and attempted to pursue the appeal | Court noted Rule 26.2 requires a notice within 30 days of an appealable order; no timely appeal exists when order is not appealable | Court held timely perfection did not occur because there was no appealable order |
Key Cases Cited
- Ramirez v. State, 89 S.W.3d 222 (Tex. App.—Corpus Christi 2002) (appellate court must determine its own jurisdiction)
- Yarbrough v. State, 57 S.W.3d 611 (Tex. App.—Texarkana 2001) (appellate jurisdiction requirements)
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (timely notice of appeal is essential to vest jurisdiction)
- Workman v. State, 343 S.W.2d 446 (Tex. Crim. App. 1961) (general rule that appellate court has jurisdiction after final judgment)
- McKown v. State, 915 S.W.2d 160 (Tex. App.—Fort Worth 1996) (discussing exceptions to final-judgment rule)
- Kirk v. State, 942 S.W.2d 624 (Tex. Crim. App. 1997) (deferred adjudication appeal exception)
- Wright v. State, 969 S.W.2d 588 (Tex. App.—Dallas 1998) (appeals from certain habeas matters)
- Desilets v. State, 495 S.W.3d 553 (Tex. App.—Beaumont 2016) (order denying request for nunc pro tunc judgment is not appealable)