Rudy Gutierrez v. State

NUMBER 13-18-00499-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
RUDY GUTIERREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 206th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Rudy Gutierrez, proceeding pro se, filed a notice of appeal from trial
cause number CR-5235-07-D(2) in the 206th District Court of Hidalgo County, Texas. In
his notice of appeal, appellant specified that he sought to appeal “concerning the above
numerated cause.” With his notice of appeal, appellant included a pleading from the trial
court in which he requested an extension of time to file a reply to the State’s response to
appellant’s application for a writ of habeas corpus. On September 14, 2018, the Clerk
of the Court notified appellant that his notice of appeal was defective and did not comply
with the Texas Rules of Appellate Procedure. The Clerk requested correction of this
defect within thirty days. On October 14, 2018, appellant filed a response to the Court’s
directive, stating that he did not have access to “State Procedures” because he is
incarcerated in the Federal Bureau of Prisons. Appellant stated that he hoped that the
Court “will allow me to file . . . an appeal for an adverse decision by the District Court.”
However, appellant did not file a corrected notice of appeal.
On October 16, 2018, the Clerk of this Court notified appellant that it appeared that
there was not a final, appealable judgment in this case and requested correction of this
defect if it could be done. The Clerk notified appellant that the appeal would be
dismissed if the defect was not cured. Appellant has not corrected the defect.
In Texas, appeals in criminal cases are permitted only when they are specifically
authorized by statute. State ex rel. Lykos, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011);
see TEX. CODE CRIM. PROC. ANN. art. 44.02 (West, Westlaw through 2017 1st C.S.).
Generally, a state appellate court only has jurisdiction to consider an appeal by a criminal
defendant where there has been a final judgment of conviction. Workman v. State, 343
S.W.2d 446, 447 (Tex. Crim. App. 1961); Ex parte Ragston, 402 S.W.3d 472, 477 (Tex.
App.—Houston [14th Dist.] 2013), aff'd sub nom. Ragston v. State, 424 S.W.3d 49 (Tex.
Crim. App. 2014); McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth 1996,
no pet.). The courts of appeals do not have jurisdiction to review interlocutory orders in
a criminal appeal absent express statutory authority. Apolinar v. State, 820 S.W.2d 792,
794 (Tex. Crim. App. 1991); Bridle v. State, 16 S.W.3d 906, 907 (Tex. App.—Fort Worth
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2000, no pet.). Exceptions to the general rule include: (1) certain appeals while on
deferred adjudication community supervision, Kirk v. State, 942 S.W.2d 624, 625 (Tex.
Crim. App. 1997); (2) appeals from the denial of a motion to reduce bond, TEX. R. APP. P.
31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the denial of habeas
corpus relief, Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.);
McKown, 915 S.W.2d at 161. See also Bridle, 16 S.W.3d at 908 n.1.
The Court, having examined and fully considered the notice of appeal and the
matters before the Court, is of the opinion that there is not an appealable order and this
Court lacks jurisdiction over the matters here. Because there is no appealable order, we
DISMISS the appeal for want of jurisdiction. All pending motions, if any, are likewise
DISMISSED.
NORA L. LONGORIA
Justice
Do not publish.
See TEX. R. APP. P. 47.2(b).
Delivered and filed the
31st day of January, 2019.
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