Fourth Court of Appeals

Case Number: 04-18-00206-CR

Judge: PER CURIAM Sitting: Patricia O. Alvarez, Luz Elena D. Chapa, Irene Rios

Court: Fourth Court of Appeals

Plaintiff's Attorney: Nicholas LaHood

Defendant's Attorney: Michael Lee Young
Dean A. Diachin

Description: Appellant Remigio A. Martinez III was charged with the offense of arson of a habitation,
and the State sought a finding of habitual offender and an affirmative finding of deadly weapon.
Martinez pled nolo contendere to the offense as charged. The trial court sentenced Martinez to
confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal
Justice. Martinez filed two separate motions for judgment nunc pro tunc. The trial court granted
in part the first motion, but it was not presented with the second. In January 2018, Martinez asked
the trial court to rule on his second nunc pro tunc motion, which the trial court denied on January
26, 2018.
Martinez mailed his notice of appeal on February 27, 2018, with a request for an extension
of time to file his notice of appeal, but his remedy does not lie in a direct appeal.
“Neither the United States nor Texas constitution guarantees the right to appeal state
criminal convictions.” Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004); accord
Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). A defendant may appeal a state criminal
conviction only as authorized by statute. Griffin, 145 S.W.3d at 646; Phynes, 828 S.W.2d at 2.
“No statute vests this [c]ourt with jurisdiction over an appeal from 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) (mem. op.); accord Reyes v. State, No. 04-12-00267-CR, 2012 WL 2602965, at *1 (Tex.
App.—San Antonio July 5, 2012, no pet.) (per curiam) (mem. op., not designated for publication).
The proper remedy to obtain review of the denial of a motion for judgment nunc pro tunc
is by petition for writ of mandamus. Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App.
2010); Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App. 2004).

Outcome: We ordered Martinez to show cause in writing why this appeal should not be dismissed for want of jurisdiction. Martinez’s court-appointed counsel timely filed a response acknowledging that Martinez has no right to appeal the denial of his motion for judgment nunc pro tunc.

We dismiss this appeal for want of jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

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