Abelardo Gerardo Gonzalez v. State ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00530-CR
Abelardo G. GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2008CRR000662-D1
Honorable David Peeples, Judge Presiding
PER CURIAM
Sitting: Sandee Bryan Marion, Chief Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: October 28, 2015
DISMISSED FOR LACK OF JURISDICTION
Appellant Abelardo Gerardo Gonzalez filed a notice of appeal on August 10, 2015, stating he
is appealing the denial of his post-judgment motion to recuse in cause numbers 2008-CRR-657, 2008-
CRR-662, and 2008-CRR-665. The judgments of conviction in the clerk’s records, as well as the copies
of those judgments that Gonzalez provided to the court, show the trial court imposed Gonzalez’s
sentences in those causes on January 15, 2010.
On September 18, 2015, we ordered Gonzalez to show why this appeal should not be
dismissed for want of jurisdiction. In our order, we noted that “[j]urisdiction must be expressly given
04-15-00530-CR
to the courts of appeals in a statute,” Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014), and
“the standard for determining jurisdiction is not whether the appeal is precluded by law, but whether
the appeal is authorized by law.” Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008).
Gonzalez responded stating (1) he has been unable to review the clerk’s records and therefore
cannot know what is wrong with or missing from them; (2) he intends to appeal the trial court’s
denial of his post-trial second motion to recuse, which is not an interlocutory order; and (3) he has
exercised due diligence in appealing the trial court’s order.
In this case, our jurisdiction depends not upon what is missing from the clerk’s record, but
upon on Gonzalez’s notice of appeal and the judgments of conviction. We are unaware of any
statute, and Gonzalez does not cite a statute, granting us jurisdiction over Gonzalez’s appeal. The
trial court imposed Gonzalez’s sentences on January 15, 2010, and Gonzalez’s August 10, 2015
notice of appeal expressly challenges the trial court’s denial of his motion to recuse. Without a
statute authorizing this appeal, the order denying a motion to recuse is not appealable and we lack
jurisdiction even if Gonzalez exercised due diligence in filing this appeal. See Ragston, 424 S.W.3d
at 52; Abbott, 271 S.W.3d at 696-97. Gonzalez has not cited any authority and we are aware of none
authorizing this appeal.
Therefore, we dismiss this appeal for lack of jurisdiction.
PER CURIAM
DO NOT PUBLISH
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