Eddie Dale Underwood v. State of Texas--Appeal from 259th District Court of Jones County

Opinion filed May 15, 2008

In The

Eleventh Court of Appeals

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 No. 11-08-00128-CR

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  EDDIE DALE UNDERWOOD, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 6880

M E M O R A N D U M O P I N I O N

In 1992, Eddie Dale Underwood was convicted of burglary of a building and sentenced to confinement for fifteen years. In 2008, appellant filed a pro se motion asking the trial court to vacate its judgment and resentence him. On April 1, 2008, the trial court signed an order overruling appellant=s motion. Appellant has perfected this appeal from the April 1, 2008 order. We dismiss for want of jurisdiction.

On April 22, 2008, the clerk of this court wrote the parties informing them that it appeared that this court did not have jurisdiction and directing appellant to respond showing grounds for continuing the appeal. Appellant has filed a response.

In his pro se motion requesting that his appeal not be dismissed, appellant cites numerous Texas and federal cases dealing with judgments nunc pro tunc, limited appeals, motions for new trial, federal resentencing, and indigency. Appellant appears to be concerned with the entry of a 1992 judgment nunc pro tunc. From the documents before us, it also appears that this 1992 judgment nunc pro tunc is the subject of his 2008 motion to vacate and resentence.

The appeal before this court at this time is appellant=s appeal from the trial court=s April 1, 2008 order overruling his 2008 motion attacking the 1992 judgment nunc pro tunc. Appellant has not established that this court has jurisdiction to entertain the present appeal.

This court has no jurisdiction over a direct challenge to the 1992 judgment nunc pro tunc as no timely appeal was perfected under former Tex. R. App. P. 40 and 41, now Tex. R. App. P. 25 and 26. The April 1, 2008 order is not a final, appealable order. As the trial court noted in that order, appellant=s concerns would be better advanced in a postconviction writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007).

The motion is overruled, and the appeal is dismissed.

PER CURIAM

May 15, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.