Eric Flores v. State ( 2019 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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ERIC FLORES, No. 08-19-00191-CR
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Appellant, Appeal from the
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V. 120th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20110D01621)
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MEMORANDUM OPINION
Eric Flores is attempting to appeal from the 120th District Court’s alleged refusal to
consider a post-conviction motion. According to his notice of appeal, the trial court has refused
to address a post-conviction motion challenging Appellant’s conviction of burglary of a building
in cause number 20110D01621. We recently dismissed another appeal by Appellant related to this
same motion. See Eric Flores v. State, Cause No. 08-19-00177-CR, 2019 WL 3001519
(Tex.App.—El Paso July 10, 2019, no pet. h.). We dismiss the attempted appeal for lack of
jurisdiction.
The Texas Constitution provides that a court of appeals has jurisdiction over “all cases of
which the District Courts or County Courts have original or appellate jurisdiction, under such
restrictions and regulations as may be prescribed by law.” TEX.CONST. art. V, § 6. Article 44.02
provides that “[a] defendant in any criminal action has the right of appeal under the rules
hereinafter prescribed . . . .” TEX.CODE CRIM.PROC.ANN. art. 44.02. Under Rule 25.2(a)(2), a
defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02
and the Rules of Appellate Procedure. TEX.R.APP.P. 25.2(a)(2). Generally, a court of appeals
only has jurisdiction to consider an appeal by a criminal defendant where there has been a final
judgment of conviction. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App. 1991); see
State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990)(noting the well-established rule
that a defendant’s general right to appeal under Article 44.02 is limited to appeal from a final
judgment). We have jurisdiction over other types of criminal appeals only when “expressly
granted by law.” McIntosh v. State, 110 S.W.3d 51, 52 (Tex.App.—Waco 2002, no pet.); see
Abbott v. State, 271 S.W.3d 694, 697 (Tex.Crim.App. 2008); Apolinar, 820 S.W.2d at 794.
On May 18, 2017, we issued an opinion and judgment affirming Appellant’s conviction of
burglary of a building in cause number 20110D01621. See Eric Flores v. State, 08-16-00025-CR,
2017 WL 2180705 (Tex.App.—El Paso May 18, 2017, pet. ref’d). The trial court’s alleged refusal
to rule on Appellant’s post-conviction motion is not an appealable order. Accordingly, we dismiss
the appeal for lack of jurisdiction.
August 7, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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