Thomas Matthew Neveu, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2014
• Docket: 01-14-00638-CR
• Status: Published

Opinion

Opinion issued September 30, 2014

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00638-CR ——————————— THOMAS MATTHEW NEVEU, JR., Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 96-DCR-028573

MEMORANDUM OPINION

On July 28, 2014, appellant, Thomas Matthew Neveu, Jr., proceeding pro se,

filed a notice of appeal seeking to challenge an order signed by the Honorable Olen

Underwood denying his motion to recuse the Honorable Thomas R. Culver III

from participating in the resolution of his motion to set aside the judgment as void. Subsequently, on September 10, 2014, Neveu filed an “Appellant’s Brief,”

requesting that we remand this case for the trial court to rule on three motions

appellant filed in the trial court or, in the alternative, that we issue a writ of

mandamus ordering the trial court to rule on the motions. We dismiss the appeal

and deny the request for a writ of mandamus.

Neveu was convicted in trial court cause number 96-DCR-028573 of

aggravated sexual assault and was sentenced to 50 years’ imprisonment. On April

7, 2014, Neveu filed a “Motion to Set Aside Void Judgment,” arguing that his

judgment of conviction for aggravated sexual assault is void. On June 2, 2014,

Neveu filed a motion to recuse the trial court judge. On July 11, 2014, the trial

court judge declined to recuse himself and referred the motion to the regional

presiding judge. On July 16, 2014, the regional presiding judge denied the motion.

Neveu filed a notice of appeal on July 28, 2014.

The procedures for recusal of judges, in both civil and criminal cases, is set

out in Texas Rule of Civil Procedure 18a. See TEX. R. CIV. P. 18a; Arnold v. State,

853 S.W.2d 543, 544 (Tex. Crim. App. 1993). Under Rule 18a, 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). Nothing in the rule confers a

right to an interlocutory appeal from an order denying a motion to recuse. See

Hranicky v. State, No. 01-11-00557-CR, 2013 WL 1804495, at *1 (Tex. App.—

2 Houston [1st Dist.] Apr. 30, 2013, pet. ref’d) (not designated for publication). “We

have no jurisdiction to review interlocutory orders except in narrow circumstances

not present here.” Means v. State, 825 S.W.2d 260, 260 (Tex. App.—Houston [1st

Dist.] 1992, no writ) (dismissing interlocutory appeal from order denying motion

for recusal for lack of jurisdiction).

Nevertheless, Neveu filed an “Appellant’s Brief” on September 10, 2014, in

which he requests that we exercise our original jurisdiction under Texas Rule of

Appellate Procedure 52 and “issue mandamus relief directing the trial court to rule

on the motions that are ‘pending’ before the court.” Because Neveu specifically

requested mandamus relief, we treat his brief as a petition for writ of mandamus.

See CMH Homes v. Perez, 340 S.W.3d 444, 452–54 (Tex. 2011).

In his brief, Neveu contends that he filed three motions—a motion for nunc

pro tunc judgment, a motion to set aside the judgment as void, and a motion for an

order setting a hearing—that have been pending since December 30, 2013, April 7,

2014, and April 21, 2014, respectively. Neveu argues that he filed a motion to

recuse the trial court judge “because he refused to rule on three motions that was

[sic] filed by appellant and had been ‘pending’ 280 days before the court.” Neveu,

however, fails to identify the trial court judge as a respondent and as a party to this

proceeding, fails to provide a copy of the motion for nunc pro tunc judgment or a

copy of the motion for an order setting a hearing, and fails to provide evidence

3 showing that the motions were called to the trial court’s attention and that the

purported delay in ruling on the motions was unreasonable. See TEX. R. APP. P.

52.2, 52.3(a), (k)(1)(A), 52.7(a)(1); In re Hickman-Bey, No. 13-11-00573-CV,

2011 WL 4529474, at *1–2 (Tex. App.—Corpus Christi Sept. 16, 2011, orig.

proceeding) (mem. op.); In re Ryan, No. 07-09-0183-CV, 2009 WL 1940911, at

*1–2 (Tex. App.—Amarillo July 7, 2009, orig. proceeding) (mem. op.); In re

Blakeney, 254 S.W.3d 659, 661–63 (Tex. App.—Texarkana 2008, orig.

proceeding); In re Smith, 263 S.W.3d 93, 96 (Tex. App.—Houston [1st Dist.]

2006, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228–29 (Tex. App.—

Amarillo 2001, orig. proceeding).

Accordingly, to the extent Neveu is attempting to appeal from the trial

court’s interlocutory order denying his motion to recuse, we dismiss the appeal for

want of jurisdiction. To the extent we treat his brief as a petition for writ of

mandamus, we deny the petition. We dismiss any pending motions as moot.

PER CURIAM Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

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