Joe Antony Cabral v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOE ANTONY CABRAL, No. 08-19-00048-CR
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Appellant, Appeal from the
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v. 409th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20180D01243)
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MEMORANDUM OPINION
This appeal is before the Court on its own motion to determine whether it should be
dismissed for want of jurisdiction. Finding that the order denying Appellant’s motion to recuse
the trial judge is not subject to an interlocutory appeal, we dismiss the appeal for want of
jurisdiction.
This Court’s jurisdiction is derived from the Texas Constitution which provides that the
courts of appeals have appellate jurisdiction “under such restrictions and regulations as may be
prescribed by law.” TEX.CONST. art. V, § 6(a). Consequently, a party may appeal only that which
the Legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992).
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. This statutory right of appeal
has been interpreted as allowing appeal from a final judgment of conviction. See State v. Sellers,
790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990); Ex parte Culver, 932 S.W.2d 207, 210 (Tex.App.-
-El Paso 1996, pet. ref’d). The courts of appeals do not have jurisdiction to review interlocutory
orders unless that jurisdiction has been expressly granted by law. Apolinar v. State, 820 S.W.2d
792, 794 (Tex.Crim.App. 1991); Culver, 932 S.W.2d at 210.
Rule 18a(j) expressly provides: “An order denying a motion to recuse may be reviewed
only for abuse of discretion on appeal from the final judgment.” TEX.R.CIV.P. 18a(j)(1)(A); see
Leija v. State, 456 S.W.3d 157, 158 (Tex.Crim.App. 2015)(“When a motion to recuse a trial judge
is denied, review occurs only after final judgment in the trial court.”). The Clerk of the Court sent
Appellant notice that the Court intended to dismiss the appeal for lack of jurisdiction because there
is no final judgment or appealable order. Appellant’s response does not address the issue of
jurisdiction. Citing Leija, the State argues that the Court does not have jurisdiction to review the
interlocutory order denying Appellant’s motion to recuse. We agree with the State. Accordingly,
we dismiss the attempted appeal for lack of jurisdiction.
GINA M. PALAFOX, Justice
February 20, 2019
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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