Opinion issued May 5, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00941-CR
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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.
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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).
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