Earnest Johnson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 30, 2022
• Docket: 10-22-00357-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00357-CR No. 10-22-00358-CR

EARNEST JOHNSON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 272nd District Court Brazos County, Texas Trial Court Nos. 18-5306-CRF-272 and 18-4253-CRM-272

MEMORANDUM OPINION

On October 31, 2022, we received the following documents from Earnest Johnson:

a “Notice of Appeal,” an “Application to Proceed Without Prepayment of Fees and

Affidavit,” and a “Subpoena Duces Tecum.” We filed the documents in these criminal

proceedings; however, Johnson was notified by letter from the Clerk of this Court, dated

November 8, 2022, that it appeared that we lacked jurisdiction over these appeals because

it appeared that there were no final judgments. The November 8, 2022 letter that was sent in each of these causes further notified Johnson that the Court may dismiss the

appeal unless, within fourteen days of the date of the letter, a response is filed showing

grounds for continuing the appeal. The only response that we received from Johnson

was a docketing statement that was filed on November 21, 2022.

Appeals in criminal cases are permitted only when they are specifically authorized

by statute. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (orig.

proceeding). “The standard for determining jurisdiction is not whether the appeal is

precluded by law, but whether the appeal is authorized by law.” Abbott v. State, 271

S.W.3d 694, 696–97 (Tex. Crim. App. 2008). Article 44.02 of the Code of Criminal

Procedure provides: “A defendant in any criminal action has the right of appeal under

the rules hereinafter prescribed.” TEX. CODE CRIM. PROC. ANN. art. 44.02. This statutory

right of appeal has been interpreted as allowing appeal only from a final judgment. State

v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App. 1990). The courts of appeals therefore

do not have jurisdiction to review interlocutory orders unless that jurisdiction has been

otherwise expressly granted by law. Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim.

App. 1991).

Based on the documents filed by Johnson, it appears that he is attempting to appeal

from an interlocutory determination of incompetency to stand trial in each of the

underlying causes. Article 46B.011 of the Code of Criminal Procedure expressly provides:

“Neither the state nor the defendant is entitled to make an interlocutory appeal relating

to a determination or ruling under Article 46B.005.” TEX. CODE CRIM. PROC. ANN. art.

Johnson v. State Page 2 46B.011. Article 46B.005 concerns the determination of incompetency to stand trial. Id.

art. 46B.005. We accordingly dismiss these appeals for want of jurisdiction.

Furthermore, Johnson’s “Application to Proceed Without Prepayment of Fees and

Affidavit” is dismissed as moot. Appellate filing fees are not assessed against defendants

in criminal appeals.

MATT JOHNSON Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Appeals dismissed Opinion delivered and filed November 30, 2022 Do not publish [CR25]

Johnson v. State Page 3