Court of Appeals of Texas, Fourth District, San Antonio
the County Court, Kinney County, Texas Trial Court Nos.
10041CR, 10056CR, 10122CR, 10134CR, 9711CR, 9712CR, 9892CR,
10123CR, 10054CR, 10138CR, 10187CR, 9964CR, 10185CR, 10047CR,
10074CR, 10115CR, 10116CR, 10117CR, 10118CR, 10125CR,
10195CR, 10196CR Honorable Spencer W. Brown, Judge Presiding
Bryan Marion, Chief Justice.
October 22, 2018, the State filed a notice of appeal seeking
to appeal an order entitled "Order on Motion to Recuse
and Jeopardy Motion for Dismissal" entered in each of
the underlying causes. The notice of appeal stated it was
being filed pursuant to articles 44.01(a)(1) and (4) of the
Texas Code of Criminal Procedure which authorizes an appeal
by the state of an order dismissing an indictment,
information, or complaint or an order sustaining a claim of
former jeopardy. Tex. Code Crim. Proc. Ann. art. 44.01(a)(1),
(4). The order in each of the underlying causes stated,
"It is Ordered, Adjudged and Decreed that the Motion to
Recusal is DENIED and the verbal Jeopardy Motion is
GRANTED." Therefore, because the order appeared to grant
a jeopardy motion for dismissal, this court appeared to have
jurisdiction to consider the appeals.
order dated December 21, 2018, this court noted its
interpretation of the trial court's order, stating,
"the State also seeks to appeal the dismissal of the
underlying causes through an order sustaining a claim of
jeopardy." The State's brief contained language
consistent with this court's interpretation of the trial
court's order. For example, the State's brief stated,
"a trial judge is without jurisdiction to dismiss a
criminal case as a sanction," and "the law and the
record do not support the sanctions and dismissal orders
entered in this case."
County's reply brief, however, questioned this
court's jurisdiction to consider these appeals, asserting
"While this Court has limited jurisdiction to hear this
matter as a petition for mandamus relief, the Court does not
have jurisdiction to hear this matter on appeal under the
cited provisions of the Code of Criminal Procedure as there
has not been a final order issued in the currently pending
criminal cases." The brief further asserts the order the
State seeks to appeal "does not dismiss the pending
criminal case in any of the above captioned cases."
Although the brief concedes "there may be ambiguity as
to what Judge Brown meant in his written order . . . no order
dismissing the case on a claim of jeopardy has issued."
it appears the underlying causes have not been dismissed, the
State is ORDERED to show cause in writing no later than two
weeks from the date of this order why these appeals should
not be dismissed for lack of jurisdiction. See Tex.
R. Civ. P. 18a(j)(1)(A) (providing order denying motion to
recuse may be reviewed only on appeal from the final
judgment); Muhammad v. State, No. 08-18-00125-CR,
2018 WL 3751742, at *1 (Tex. App.-El Paso Aug. 8, 2018, no
pet.) (quoting Tex.R.Civ.P. 18a(j)(2) which provides an order
'denying a motion to disqualify may be reviewed by
mandamus and may be appealed in accordance with other
law' but stating no 'other law' allows an
interlocutory appeal of an order denying a motion to
disqualify in a criminal case) (not designated for
publication); Hranicky v. State, No. 01-11-00557-CR,
2013 WL 1804495, at *1 (Tex. ...