                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00531-CR


ROBBIE LOFTIN                                                       APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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      On September 14, 2010, Appellant Robbie Loftin filed a pro se “Motion for

Judgment Nunc Pro Tunc” in the trial court, contending that the September 1,

2008 judgment of his conviction for driving while intoxicated erroneously states

that he was convicted of a first degree felony instead of a third degree felony,

which the indictment had alleged. On December 8, 2010, Loftin filed a pro se

notice of appeal in which he stated that his motion for judgment nunc pro tunc had


      1
       See Tex. R. App. P. 47.4.
been denied by operation of law. On December 20, 2010, we notified Loftin of our

concern that we lack jurisdiction over this appeal because (1) he had not provided

this court with an order showing that the motion for judgment nunc pro tunc had

been denied and (2) the denial of a motion for judgment nunc pro tunc may not be

appealable. We informed Loftin that the appeal could be dismissed for want of

jurisdiction unless he or any party desiring to continue the appeal filed a response

on or before January 4, 2011, showing grounds for continuing the appeal. Loftin

filed a response, but it fails to show grounds for continuing the appeal.

       We do not have appellate jurisdiction over the denial of a motion for

judgment nunc pro tunc. Everett v. State, 82 S.W.3d 735, 735 (Tex. App.—Waco

2002, pet. dism’d); Vernon v. State, No. 10-09-00292-CR, 2009 WL 3645710, at

*1 (Tex. App.—Waco Nov. 4, 2009, no pet.) (mem. op., not designated for

publication). The appropriate remedy by which to obtain review of the denial of a

nunc pro tunc motion is a petition for writ of mandamus.          Vernon, 2009 WL

3645710, at *1 (citing Ex parte Forooghi, 185 S.W.3d 498, 499 (Tex. Crim. App.

2006) (Johnson, J., concurring statement)). Accordingly, we dismiss this appeal

for want of jurisdiction.


                                                    PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 10, 2011


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