Christian McCullough v. The State of TexasAppeal from 204th Judicial District Court of Dallas County (memorandum opinion )
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DISMISS; Opinion Filed May 16, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00667-CR CHRISTIAN GABRIEL MCCULLOUGH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F12-70377 MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Myers Christian Gabriel McCullough was convicted, upon his adjudication of guilt, of forgery of a check and was sentenced to confinement for one year in a state jail. Sentence was imposed in open court on December 3, 2012. On April 23, 2013, appellant filed a motion for a judgment nunc pro tunc seeking additional back time credit. The trial court does not appear to have ruled on the motion, but on May 3, 2013, appellant filed a notice of appeal asserting he is being denied back time credit to which he is entitled. We conclude we lack jurisdiction over the appeal. Presentence time credit claims typically must be raised by motion for judgment nunc pro tunc, as appellant did here. See Ex parte Florence, 319 W.W.3d 695, 696 (Tex. Crim. App. 2010) (per curiam). However, if the trial court denies a motion for judgment nunc pro tunc or fails to respond, the proper avenue for relief is by petition for writ of mandamus. See id. Or, if the applicant claims he is being illegally confined because he would have discharged his sentence if he had been given proper time credit, he may seek relief by post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See id. Appellant did not utilize the above avenues for relief. Rather, he filed a notice of appeal, which is not one of the identified remedies. Accordingly, we conclude we lack jurisdiction over the appeal. We dismiss the appeal for want of jurisdiction. /Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX R. APP. P. 47 130667F.U05 2 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT CHRISTIAN GABRIEL MCCULLOUGH, Appellant No. 05-13-00667-CR On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F12-70377. Opinion delivered by Justice Myers, Justices Lang and Evans participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered this 16th day of May, 2013. /Lana Myers/ LANA MYERS JUSTICE 3
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