James Jerald Zarychta, Jr. v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-07-624 CR ____________________

JAMES JERALD ZARYCHTA, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 94-05-00532-CR

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MEMORANDUM OPINION

On December 20, 2007, we notified the parties that our jurisdiction was not apparent from the notice of appeal, and notified them that the appeal would be dismissed for want of jurisdiction unless we received a response showing grounds for continuing the appeal. The appellant filed a response, but failed to articulate a valid basis for jurisdiction in that response. The State contends no appeal may be taken from the order in question. We dismiss the appeal.

The notice of appeal seeks to invoke this Court's appellate jurisdiction to review the trial court's order denying a motion to compel and motion for evidentiary hearing filed by James Jerald Zarychta, Jr. ⁽¹⁾ Generally, an appellate court has jurisdiction to consider an appeal by a criminal defendant only where there has been a final judgment of conviction. Workman v. State, 170 Tex. Crim. 621, 343 S.W.2d 446, 447 (1961). Zarychta was finally convicted of capital murder and that judgment was affirmed on appeal. Zarychta v. State, 44 S.W.3d 155 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). Thus, Zarychta has exhausted his right to appeal his conviction for capital murder. Id.

The right of appeal is statutorily created; where no statute grants a right of appeal from a particular order, no appeal may be taken. See, e.g., Wolfe v. State, 120 S.W.3d 368, 370 (Tex. Crim. App. 2003); Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991) (no interlocutory appeal from denial of special plea). An order denying a post-conviction motion to compel disclosure of records and for an evidentiary hearing is neither a judgment of guilt nor an order from which an appeal is specifically authorized by statute. See generally Tex. Code Crim. Proc. Ann. § 44.02 (Vernon 2006). Accordingly, we hold the order cannot be appealed to this Court. The appeal is dismissed for want of jurisdiction.

APPEAL DISMISSED FOR LACK OF JURISDICTION.

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STEVE McKEITHEN

Chief Justice

Opinion Delivered January 16, 2008

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Zarychta was convicted of escape in Cause No. 94-05-00532-CR. Although the trial court's order and the notice of appeal were filed in Cause No. 94-05-00532-CR, the motion and order actually relate to a separate conviction for capital murder that was originally indicted in Cause No. 93-08-00663-A. The capital murder case was transferred for trial in Brazos County as No. 23,364-272. Zarychta originally filed his motion to compel in Brazos County, but the matter was transferred to Montgomery County. Although the trial court signed an order in Cause No. 93-08-00663-A allowing James Zarychta, Sr. and Cynthia Zarychta to have access to the juvenile file of a co-defendant, the order identified in the notice of appeal was filed in the escape case, No. 94-05-00532-CR, evidently by mistake.