Damaris Plaisant McCalley v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 15, 2023
• Docket: 02-23-00086-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-23-00086-CR ___________________________

DAMARIS PLAISANT MCCALLEY, Appellant

V.

THE STATE OF TEXAS

On Appeal from County Criminal Court No. 4 Denton County, Texas Trial Court No. CR-2022-02247-A

Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION

Damaris Plaisant McCalley attempts to appeal from the order denying her

motion to recuse the trial-court judge signed by the Presiding Judge of the Eighth

Administrative Judicial Region. See generally Tex. R. Civ. P. 18a, 18b. 1 We wrote to

McCalley to notify her of our concern that we lacked jurisdiction over her appeal

because in criminal cases, our jurisdiction is generally limited to cases in which the

trial court has signed a conviction judgment. See McKown v. State, 915 S.W.2d 160,

161 (Tex. App.—Fort Worth 1996, no pet.) (per curiam). We further explained that

an interlocutory order denying a recusal motion is not immediately appealable. See, e.g.,

Reger v. State, No. 02-21-00049-CR, 2021 WL 2586619, at *1 (Tex. App.—Fort Worth

June 24, 2021, no pet.) (mem. op., not designated for publication). We warned

McCalley that unless she or any party filed a response within ten days showing

grounds for continuing the appeal, we could dismiss the appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f), 44.3.

Ten days have passed, and we have not received a response. Because an order

denying a recusal motion is not an appealable interlocutory order and the trial court

has not yet signed a conviction judgment, we dismiss this appeal for want of

jurisdiction. See Tex. R. App. P. 43.2(f); Tex. R. Civ. P. 18a(j)(1)(A) (“An order

1 “The procedures for recusal of judges set out in Rule 18a of the Texas Rules of Civil Procedure apply in criminal cases.” De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding).

2 denying a motion to recuse may be reviewed only for abuse of discretion on appeal

from the final judgment.”); see also Reger, 2021 WL 2586619, at *1; cf. Green v. State,

374 S.W.3d 434, 445–46 (Tex. Crim. App. 2012) (dismissing appeal from order

denying motion to recuse trial-court judge who had determined defendant’s

competency to be executed and holding that order could be reviewed only on appeal

from final judgment determining competency).

/s/ Elizabeth Kerr Elizabeth Kerr Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: June 15, 2023