Clarence McFarlin, Jr. v. State ( 2007 )

Dismissed and Memorandum Opinion filed November 15, 2007

Dismissed and Memorandum Opinion filed November 15, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00467-CR

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CLARENCE MCFARLIN, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4

Fort Bend County, Texas

Trial Court Cause No. 99720A

M E M O R A N D U M   O P I N I O N

This is an attempted appeal of an order signed April 4, 2007, granting the State=s motion to dismiss the criminal action against appellant with leave for the State to refile. 

Generally, an 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, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961);  McKown v. State, 915 S.W.2d 160, 161  (Tex. App.CFort Worth 1996, no pet.).  There are exceptions to this rule. For example, the State may appeal an order dismissing an indictment.  Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (Vernon 2006).  However, this right of appeal from the dismissal of an indictment has not been extended to the defendant, either by statute or by case law.  See, e.g., Petty v. State, 800 S.W.2d 582, 584 (Tex. App.BTyler 1990, no pet.).

While appellant acknowledges this law, appellant attempts to distinguish the facts of this case and claims this case is more comparable to the facts in cases allowing appeal from the denial of a pretrial application for writ of habeas corpus alleging double jeopardy.  Appellant argues that under the facts of his case, due process and due course of law should allow him the opportunity to obtain a dismissal with prejudice so that he is not again subjected to prosecution Arife with police and prosecutorial misconduct . . . .@  In support of this argument, appellant cites to Ex parte Masonheimer, 220 S.W.3d 494 (Tex. Crim. App. 2007), in which the court held that a third prosecution was barred by double jeopardy after the first two trials had been terminated by mistrials due to prosecutorial misconduct.

We are unpersuaded by appellant=s argument.  The order appealed in Masonheimer was the denial of a pretrial application for writ of habeas corpus alleging double jeopardy, which the courts have long held to be an appealable order.  Abney v. U.S., 431 U.S. 651, 662 (1977); Ex parte Robinson, 641 S.W.2d 552, 555 (Tex. Crim. App. 1982). The order appealed in this case is not a denial of an application for habeas relief based on double jeopardy.

Because this appeal does not fall within the exceptions to the general rule that appeal may be taken only from a final judgment of conviction, we have no jurisdiction.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 15, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).