Rudy Gutierrez v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2019
• Docket: 13-18-00499-CR
• Status: Published

Opinion

NUMBER 13-18-00499-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

RUDY GUTIERREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Hinojosa Memorandum Opinion by Justice Longoria

Appellant Rudy Gutierrez, proceeding pro se, filed a notice of appeal from trial

cause number CR-5235-07-D(2) in the 206th District Court of Hidalgo County, Texas. In

his notice of appeal, appellant specified that he sought to appeal “concerning the above

numerated cause.” With his notice of appeal, appellant included a pleading from the trial court in which he requested an extension of time to file a reply to the State’s response to

appellant’s application for a writ of habeas corpus. On September 14, 2018, the Clerk

of the Court notified appellant that his notice of appeal was defective and did not comply

with the Texas Rules of Appellate Procedure. The Clerk requested correction of this

defect within thirty days. On October 14, 2018, appellant filed a response to the Court’s

directive, stating that he did not have access to “State Procedures” because he is

incarcerated in the Federal Bureau of Prisons. Appellant stated that he hoped that the

Court “will allow me to file . . . an appeal for an adverse decision by the District Court.”

However, appellant did not file a corrected notice of appeal.

On October 16, 2018, the Clerk of this Court notified appellant that it appeared that

there was not a final, appealable judgment in this case and requested correction of this

defect if it could be done. The Clerk notified appellant that the appeal would be

dismissed if the defect was not cured. Appellant has not corrected the defect.

In Texas, appeals in criminal cases are permitted only when they are specifically

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

see TEX. CODE CRIM. PROC. ANN. art. 44.02 (West, Westlaw through 2017 1st C.S.).

Generally, a state appellate court only has jurisdiction to consider an appeal by a criminal

defendant where there has been a final judgment of conviction. Workman v. State, 343

S.W.2d 446, 447 (Tex. Crim. App. 1961); Ex parte Ragston, 402 S.W.3d 472, 477 (Tex.

App.—Houston [14th Dist.] 2013), aff'd sub nom. Ragston v. State, 424 S.W.3d 49 (Tex.

Crim. App. 2014); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996,

no pet.). 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); Bridle v. State, 16 S.W.3d 906, 907 (Tex. App.—Fort Worth

2 2000, no pet.). Exceptions to the general rule 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.—Dallas 1998, no pet.);

McKown, 915 S.W.2d at 161. See also Bridle, 16 S.W.3d at 908 n.1.

The Court, having examined and fully considered the notice of appeal and the

matters before the Court, is of the opinion that there is not an appealable order and this

Court lacks jurisdiction over the matters here. Because there is no appealable order, we

DISMISS the appeal for want of jurisdiction. All pending motions, if any, are likewise

DISMISSED.

NORA L. LONGORIA Justice

Do not publish. See TEX. R. APP. P. 47.2(b).

Delivered and filed the 31st day of January, 2019.