Patrick Dunbar Jesse v. State

Opinion

Opinion issued May 5, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00941-CR ——————————— PATRICK DUNBAR JESSE, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court Harris County, Texas Trial Court Case No. 1370984

MEMORANDUM OPINION

Appellant, Patrick Dunbar Jesse, attempts to appeal from an order denying

his motion to disqualify or, in the alternative, recuse the trial court judge, the

Honorable Susan Brown. We dismiss the appeal. After refusing to disqualify herself, the trial court judge referred the motion

to the regional presiding judge, the Honorable Olen Underwood. See TEX. R. CIV.

P. 18a. On November 3, 2014, he signed an order denying appellant’s motion. On

November 5, 2015, appellant filed his notice of an interlocutory appeal from that

order.

The right to appeal in a criminal case is a statutorily created right. TEX.

CODE CRIM. P. ANN. art. 44.02 (Vernon 2006); Bayless v. State, 91 S.W.3d 801,

805 (Tex. Crim. App. 2002). Generally, a criminal defendant may 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 do not have jurisdiction to review interlocutory

orders in a criminal appeal absent express statutory authority. Apolinar v. State,

820 S.W.2d, 792, 794 (Tex. Crim. App. 1991); Means v. State, 825 S.W.2d 260,

260–61 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Nothing in the language of

rule 18a, which sets forth the procedures for recusal of judges in civil and criminal

cases, provides a right to an interlocutory appeal from the denial of a motion to

recuse. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (stating

procedures for recusal of judges set out in rule 18a apply in criminal cases). To the

contrary, “[a]n order denying a motion to recuse may be reviewed only for abuse

of discretion on the final judgment.” TEX. R. CIV. PROC. 18a(j)(1); see Means, 925

2 S.W.2d at 261 (dismissing for want of jurisdiction appeal from interlocutory order

denying motion for recusal and disqualification).

Citing to this Court’s opinion in Means v. State, we notified appellant that

his appeal was subject to dismissal for want of jurisdiction unless he filed a written

response showing how this Court has jurisdiction over this appeal. We also advised

appellant that the trial court’s certification of appellant’s right to appeal indicated

that he did not have a right to appeal from the order denying his motion to recuse.

See TEX. R. APP. P. 25.2(a)(2), (d); Dears v. State, 154 S.W.3d 610, 613 (Tex.

Crim. App. 2005) (providing appellate court must dismiss appeal if certification

showing that defendant has right of appeal is not made part of record). Appellant

responded by filing a motion for leave to make a certification of appellant’s right

to appeal from the final judgment of conviction a part of the record in this appeal.1

Appellant’s response, however, does not demonstrate that this Court has

jurisdiction over his interlocutory appeal of the November 3, 2014 order. See

Chavez v. State, 183 S.W.3d 675, 678 (Tex. Crim. App. 2006) (citing White v.

State, 61 S.W.3d 424, 427–28 (Tex. Crim. App. 2001)) (noting rule 25.2 sets outs

procedures to invoke appellate court’s jurisdiction and recognizing that “Rules of

Appellate Procedure do not establish appellate jurisdiction”).

1 On February 12, 2015, the trial court signed a judgment of conviction and executed a certification of appellant’s right to appeal the judgment. Appellant timely filed a notice of appeal. His appeal of the final judgment is pending in this Court in cause no. 01-15-00181-CR. 3 Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R.

APP. P. 43.2(f). We dismiss all pending motions as moot.

PER CURIAM

Panel consists of Justices Jennings, Higley, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).