Mark Wayne Lomax v. State

• Court: Court of Appeals of Texas
• Decided: June 19, 2008
• Docket: 14-08-00257-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed June 19, 2008

Dismissed and Memorandum Opinion filed June 19, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00256-CR

NO. 14-08-00257-CR

MARK WAYNE LOMAX, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 907028

M E M O R A N D U M   O P I N I O N

Appellant was convicted of felony murder and sentenced as an habitual offender to confinement for fifty-five years in the Institutional Division of the Texas Department of Criminal Justice.  His convictions were affirmed.  See Lomax v. State, No. 10-03-00156-CR, 2006 WL 871723 (Tex. App.CWaco 2006) (not designated for publication), aff=d, 233 S.W.3d 302 (Tex. Crim. App. 2007). 

Appellant is attempting to appeal from the trial court=s February 20, 2008, orders denying his motions for disclosure of grand jury minutes and for appointed counsel to represent him in an application for post-conviction habeas corpus.  Appellant filed pro se notices of appeal on March 24, 2008.  The records in these appeals reflect that the notices of appeal were mailed on March 18, 2008, within thirty days of the date of the trial court=s ruling.  See Tex. R. App. P. 9.2(b) (stating mailed documents are timely filed when mailed on or before due date and received within ten days).

Generally, an appellate court has jurisdiction to consider an appeal by a criminal defendant only when there has been a final judgment of conviction.  Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961);  McKown v. State, 915 S.W.2d 160, 161 (Tex. App.CFort Worth 1996, no pet.).  The right to appeal is statutorily created; where no statute grants a right to appeal from a particular order, no appeal may be taken.  See, e.g., Wolfe v. State, 120 S.W.3d 368, 370 (Tex. Crim . App. 2003); see generally Tex. Code  Crim. Proc. Ann. ' 44.02 (Vernon 2006).  These limited exceptions include: (1) certain appeals while on deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex. Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond, Tex. R. App. P.  31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the denial of habeas corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.CDallas 1998, no pet.); McKown, 915 S.W.2d at 161. 

The denial of motions for disclosure of grand jury minutes and for appointment of counsel are not separately appealable orders.  See Kelly v. State, 151 S.W.3d 683, 687 (Tex. App.CWaco 2004, no pet.) (holding no statute authorizes appeal from denial of motion for disclosure of grand jury proceedings); Workman, 343 S.W.2d at 447 (stating order denying counsel does not fall within the categories of appealable interlocutory orders).  Because these appeals do not fall within the exceptions to the general rule that an appeal may be taken only from a final judgment of conviction, we have no jurisdiction.  Moreover, this court lacks jurisdiction over post-conviction habeas proceedings in felony cases.  See Tex. Code Crim. Proc. Ann. art. 11.07 ' 3 (Vernon Supp. 2007); Board of Pardons and Paroles ex rel. Keene v. Eighth Court of Appeals, 910 S.W.2d 481, 483 (Tex. Crim. App. 1995) (jurisdiction to grant post-conviction habeas relief lies exclusively with court of criminal appeals).

Accordingly, the appeals are ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed June 19, 2008.

Panel consists of Chief Justice Hedges and Justices Fowler and Boyce.

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