Castor v. State

OPINION TOM GRAY, Chief Justice. Acting as his own attorney, Martin Sau-cedo Castor filed a notice of appeal. The notice of appeal invoked our jurisdiction, at least to the extent of determining whether or not we have jurisdiction of the merits of the underlying issues that Castor sought to appeal. Still acting as his own attorney, Castor has now filed a “Motion to Dismiss Appeal.” In the motion, Castor indicates that the notice of appeal was filed in error and that the issue he is seeking to appeal is “jail time credit ‘Nunc Pro Tunc’ appeal .... ” Castor personally signed the motion. See Tex.R.App. P. 42.2(a). We do not have appellate jurisdiction of the denial of a motion for judgment nunc pro tunc. Everett v. State, 82 S.W.3d 735 (Tex.App.-Waco 2002, pet. dism’d). The appropriate remedy to obtain review of the denial of a nunc pro tunc motion is by a petition for writ of mandamus. Ex parte Forooghi, 185 S.W.3d 498 (Tex.Crim.App.2006) (Johnson, J., concurring statement); see also Ex parte Ybarra, 149 S.W.3d 147, 149 (Tex.Crim.App.2004). Castor’s motion to dismiss does not contain proof of service as required by Texas Rule of Appellate Procedure 9.5. However, we provided a copy of the motion to dismiss to the State. We have not issued an opinion in this case, and the Clerk has sent a duplicate copy of the motion to the trial court clerk. See Tex.R.App. P. 42.2(a). This appeal is dismissed. Appeal Dismissed.