                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00034-CR


LARRY GENE SEWELL                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 0248756D

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                        MEMORANDUM OPINION 1

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      Appellant Larry Gene Sewell attempts to appeal from the trial court’s order

denying his motion to set aside a prior nunc pro tunc order. We dismiss the

appeal.

      In 1985, a jury convicted appellant for committing murder. The trial court

sentenced him to confinement for life. In 1987, the trial court entered a nunc pro


      1
       See Tex. R. App. P. 47.4.
tunc order that amended the judgment to include an affirmative deadly weapon

finding. The record does not establish that appellant attempted to challenge the

nunc pro tunc order through an appeal (or otherwise) at that time. 2

      In December 2014, appellant filed a motion to set aside the nunc pro tunc

order. The same month, the trial court denied appellant’s motion, finding that the

“deadly weapon finding is proper.” Appellant filed a pro se notice of appeal from

the December 2014 order.

      We sent appellant a letter expressing our concern that we lack jurisdiction

over this appeal because the trial court’s order is not appealable. We informed

appellant that unless he filed a response showing grounds for continuing the

appeal, we would dismiss it. Appellant filed a response, but the response does

not cite authority showing that the trial court’s December 2014 order is

appealable, nor have we found such authority. Because we conclude that the

December 2014 order denying appellant’s motion to set aside the 1987 nunc pro

tunc order is not appealable, we dismiss appellant’s appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f); Underwood v. State, No. 11-08-00128-

CR, 2008 WL 2058548, at *1 (Tex. App.—Eastland May 15, 2008, pet. dism’d)

(mem. op., not designated for publication) (holding that when a defendant

attempted to challenge a 1992 nunc pro tunc order by filing a motion to vacate in


      2
        A nunc pro tunc order is appealable, but the appeal must be brought
within the time set by the rules of appellate procedure. See Blanton v. State, 369
S.W.3d 894, 904 (Tex. Crim. App. 2012).


                                         2
2008, the court of appeals did not have jurisdiction over the trial court’s denial of

that motion); see also In re McCreary, No. 12-15-00067-CR, 2015 WL 1395783,

at *1 (Tex. App.—Tyler Mar. 25, 2015, orig. proceeding) (mem. op., not

designated for publication) (explaining that an order denying a motion for

judgment nunc pro tunc is not appealable and that the appropriate remedy for a

trial court’s refusal to correct a clerical error in a judgment is through a petition for

writ of mandamus) 3 (citing Ex parte Ybarra, 149 S.W.3d 147, 148–49 (Tex. Crim.

App. 2004)).


                                                      PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

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

DELIVERED: May 21, 2015




      3
        Appellant’s motion to set aside the nunc pro tunc order is similar to a
motion for judgment nunc pro tunc because it appears to seek a change of the
trial court’s final judgment of conviction (as amended by the 1987 nunc pro tunc
order).


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