Joe Antony Cabral v. State

• Court: Court of Appeals of Texas
• Decided: February 20, 2019
• Docket: 08-19-00048-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ JOE ANTONY CABRAL, No. 08-19-00048-CR § Appellant, Appeal from the § v. 409th District Court § THE STATE OF TEXAS, of El Paso County, Texas § Appellee. (TC# 20180D01243) §

MEMORANDUM OPINION

This appeal is before the Court on its own motion to determine whether it should be

dismissed for want of jurisdiction. Finding that the order denying Appellant’s motion to recuse

the trial judge is not subject to an interlocutory appeal, we dismiss the appeal for want of

jurisdiction.

This Court’s jurisdiction is derived from the Texas Constitution which provides that the

courts of appeals have appellate jurisdiction “under such restrictions and regulations as may be

prescribed by law.” TEX.CONST. art. V, § 6(a). Consequently, a party may appeal only that which

the Legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992).

Article 44.02 provides that 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 from a final judgment of conviction. See State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990); Ex parte Culver, 932 S.W.2d 207, 210 (Tex.App.-

-El Paso 1996, pet. ref’d). The courts of appeals do not have jurisdiction to review interlocutory

orders unless that jurisdiction has been expressly granted by law. Apolinar v. State, 820 S.W.2d

792, 794 (Tex.Crim.App. 1991); Culver, 932 S.W.2d at 210.

Rule 18a(j) expressly provides: “An order denying a motion to recuse may be reviewed

only for abuse of discretion on appeal from the final judgment.” TEX.R.CIV.P. 18a(j)(1)(A); see

Leija v. State, 456 S.W.3d 157, 158 (Tex.Crim.App. 2015)(“When a motion to recuse a trial judge

is denied, review occurs only after final judgment in the trial court.”). The Clerk of the Court sent

Appellant notice that the Court intended to dismiss the appeal for lack of jurisdiction because there

is no final judgment or appealable order. Appellant’s response does not address the issue of

jurisdiction. Citing Leija, the State argues that the Court does not have jurisdiction to review the

interlocutory order denying Appellant’s motion to recuse. We agree with the State. Accordingly,

we dismiss the attempted appeal for lack of jurisdiction.

GINA M. PALAFOX, Justice February 20, 2019

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)

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