Opinion filed October 18, 2012




                                              In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-12-00286-CR
                                         __________

                                 MELTON SELL, Appellant

                                                 V.

                                 STATE OF TEXAS, Appellee


                            On Appeal from the 42nd District Court

                                      Taylor County, Texas

                                  Trial Court Cause No. 16805-A


                            MEMORANDUM OPINION
       In 1992, Melton Sell was convicted of the offense of murder and sentenced to a term of
confinement for sixty years. On August 21, 2012, Sell filed in the trial court a motion to vacate
plea or correct sentence nunc pro tunc. The trial court denied the motion, and Sell filed a notice
of appeal. We notified Sell by letter that it did not appear that this court had jurisdiction in this
matter, and we requested that Sell file a response showing grounds to continue the appeal.
       Sell has filed a response urging that his rights have been violated and that he has a right
to appeal the adverse decision denying his motion. The trial court’s denial of Sell’s motion to
vacate plea or correct sentence nunc pro tunc is not an appealable order, and this court has no
jurisdiction to entertain an appeal from that order. Everett v. State, 82 S.W.3d 735 (Tex. App.—
Waco 2002, pet. dism’d); see also Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim. App.
2004) (appeal of denial of nunc pro tunc is by way of a petition for writ of mandamus). Sell also
requests that, if this court determines that it is without jurisdiction over this appeal, we “interpret
his filings as a Writ of Mandamus to compel the Court below to allow responsive papers from
the District Attorney and hold a fair hearing.” Pursuant to appellant’s alternative request, we are
this day filing Sell’s petition for writ of mandamus in this court in Cause No. 11-12-00321-CR.
         The appeal, Cause No. 11-12-00286-CR, is dismissed for want of jurisdiction.


                                                                                  PER CURIAM


October 18, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill.2




         1
           Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a
successor by the governor or until the next general election.

         2
             John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

                                                                  2
