Kerry Lee Beal v. State ( 2012 )

Motion to Dismiss Granted; Dismissed and Memorandum Opinion filed November
20, 2012.
In The
Fourteenth Court of Appeals
NOS. 14-12-00985-CR; 14-12-00986-CR; 14-12-00987-CR;
14-12-00988-CR; 14-12-00989-CR; 14-12-00990-CR; and
14-12-00994-CR
KERRY LEE BEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause Nos. 12-DCR-059320; 12-DCR-059320A; 12-DCR-059320B;
12-DCR-059451A; 12-DCR-059451B; 12-DCR-060479A; and
12-DCR-059451
MEMORANDUM OPINION
Appellant filed a pro se notice of appeal attempting to appeal from the denial of
his motion to quash the trial court’s October 15, 2012, order granting the State’s motion
for discovery of his DNA, through a compelled saliva specimen, in connection with a
pending criminal charge or charges. Appellant’s notice of appeal includes all seven of the
above referenced related cause numbers.
Clerk’s records have been filed in these appeals.1 According to the records,
appellant was indicted for attempted murder in cause number 12-DCR-059451. Cause
numbers 12-DCR-059451A and 12-DCR-059451B reflect that these cases resulted after
re-indictments for attempted murder. The attempted murder charge was transferred to the
268th District Court where an arson charge was filed against appellant under cause
number 12-DCR-059320 (subsequent reindictments were assigned cause numbers 12-
DCR-059320A and 12-DCR-059320B), and an aggravated assault charge was filed in
cause number 12-DCR-060479A. Therefore, it appears that there are three pending cases:
cause numbers 12-DCR-059451B for attempted murder; 12-DCR-059320B for arson;
and 12-DCR-060479A for aggravated assault.
On November 15, 2012, appellant filed a motion to dismiss the appeals filed under
numbers 14-12-00988-CR, 14-12-00989-CR, 14-12-00990-CR and 14-12-00994-CR.
The motion is granted.
Our records reflect that the State’s motion to compel a saliva specimen was filed
in cause number 12-DCR-059320B, filed under our case number 14-12-00987-CR. The
Fort Bend County District Clerk’s office certified that the order granting the State’s
motion to compel appellant’s saliva specimen was signed October 15, 2012, and the order
is filed only in cause number 12-DCR-059320B. The records contain no final judgment
of conviction in any of these cases.
Generally, an appellate court has jurisdiction to consider an appeal by a criminal
defendant only after there has been a final judgment of conviction. See 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.—Fort Worth 1996, no pet.). There are some limited exceptions, not
applicable here, permitting an interlocutory order to be appealed. See, e.g., Kirk v. State,
942 S.W.2d 624, 625 (Tex. Crim. App. 1997) (recognizing that certain orders while a
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It appears from the records in these cases that appellant is pro se in the court below and on
appeal. The records reflect that an attorney was representing appellant in these cases, but appellant
recently waived his right to counsel. A defendant in a criminal case has no right to hybrid representation,
which is defined as representation in part by counsel and in part by one’s self. Robinson v. State, 240
S.W.3d 919, 921 (Tex. Crim. App. 2007).
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defendant is on deferred adjudication community supervision may be appealed);
McKown, 915 S.W.2d at 161 (stating that an interlocutory appeal from the denial of a
motion to reduce bond is permitted).
An order denying habeas corpus relief may be appealed to an intermediate
appellate court in some circumstances. See Wright v. State, 969 S.W.2d 588, 589 (Tex.
App.—Dallas 1998, no pet.). The clerk’s records in these cases contain a pro se pre-trial
application for a writ of habeas corpus challenging the effectiveness of appellant’s
appointed attorney. Our records contain a pre-trial application for writ of habeas corpus
filed on September 25, 2012, and an application filed on October 24, 2012, complaining
of the denial of his right to a speedy trial and the trial court’s failure to dismiss the
indictment. There is no indication in our records that a hearing was conducted or that the
trial court signed an order denying habeas relief. Thus, there is no appealable order
concerning habeas relief.
In addition, an order granting the State’s motion to compel appellant’s saliva
specimen is not a separately appealable order before a judgment of conviction has been
signed. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) (“The courts
of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction
has been expressly granted by law.”). There is no statutory provision permitting an
interlocutory appeal from a discovery order such as the order in this case. Therefore, we
lack jurisdiction over these attempted appeals.
Accordingly, all of the appeals are ordered dismissed. Appellant’s motions to
strike, for suspension of the rules, and to consolidate are denied as moot.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Brown and Boyce.
Do Not Publish — Tex. R. App. P. 47.2(b).
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