Jose Diego Cruz-Escobar v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
_______________________
NO. 09-18-00362-CR
_______________________
JOSE DIEGO CRUZ-ESCOBAR, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 14-03-03342-CR
________________________________________________________ _____________
MEMORANDUM OPINION
Jose Diego Cruz-Escobar was convicted in Trial Cause Number 14-03-03342-
CR of four counts of aggravated sexual assault of a child, and four counts of
indecency with a child by sexual contact. We affirmed the trial court’s judgments.
See Cruz-Escobar v. State, Nos. 09-14-00202-CR through 09-14-00209-CR (Tex.
App.—Beaumont Mar. 4, 2015, no pet.) (mem. op., not designated for publication).
Long after our mandate issued, Cruz-Escobar filed a motion asking the trial court
for leave to file a mandamus petition to address errors that he claimed occurred in
1
the trial. On August 14, 2018, the trial court denied the motion for want of
jurisdiction. Cruz-Escobar filed a notice of appeal. On September 26, 2018, we
notified that parties that the order identified in the notice of appeal was neither a
final judgment nor an appealable order.
“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). A defendant’s general right to appeal
under article 44.02 of the Texas Code of Criminal Procedure has always been limited
to appeal from a final judgment. Id. at 697 n.8; see also Tex. Code Crim. Proc. Ann.
art. 44.02 (West 2018).
Furthermore, the Court of Criminal Appeals has exclusive authority to release
from confinement persons who have been finally convicted of felonies in this State.
Ex parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985). When a conviction
is affirmed on appeal the trial court has limited jurisdiction to ensure that a higher
court’s mandate is carried out and to perform other functions specified by statute.
State v. Patrick, 86 S.W.3d 592, 595 (Tex. Crim. App. 2002). Absent the grant of
habeas relief by the Court of Criminal Appeals, the trial court lacks jurisdiction to
rule on a motion for new trial more than 75 days after sentence is imposed in open
2
court. See Fowler v. State, 803 S.W.2d 848, 849 (Tex. App.—Corpus Christi 1991,
no pet.).
Because Cruz-Escobar is not appealing from a judgment of conviction or an
otherwise appealable order, we lack appellate jurisdiction. See Ragston v. State, 424
S.W.3d 49, 52 (Tex. Crim. App. 2014). Accordingly, the appeal is dismissed for lack
of jurisdiction. See Tex. R. App. P. 43.2(f).
APPEAL DISMISSED.
________________________________
LEANNE JOHNSON
Justice
Submitted on October 23, 2018
Opinion Delivered October 24, 2018
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
3