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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
OPINION[1]
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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 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DO NOT PUBLISH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




          [1]See Tex. R. App. P. 47.4.


