## NO. 12

- 21

- 00183

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

SAMUEL HALE , APPEL L ANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 420TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPIN ION PER CURIAM Samue l Hale appeals from a Septe mber 16, 2021 , order denyin g his motion to disqualify the trial co urt judge. The case information sheet from the Nacogdoches County District Clerk ’ s Office reflects that his case was dismissed on October 16, 2014

. On October 12, 2021, t he Clerk of this Court notified Appellant that the notice of appeal does not show the ju risdiction of this Court, i.e., the order being appealed is not an appeala ble order. The notice further advised that the appeal would be di smissed unl ess the notice of appeal was amended on or be fore November 12, 2021 to show this Court ’s jurisdiction. Appellant filed an amended notice of appeal , stating his “intent to appeal by Mandamus Application for Appeal ” to this Court on the denial of the motion to disqualify , “an appeal from a j udgement [sic] made on September 1 6 th , 2021. ” An order granting or deny ing a motion to disqualify may be reviewed by mandamus and may be appealed in accordance with other law. T EX

. R. C IV

. P. 18a(j)(2) ; see DeLeon v. Aguilar , 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. pro ceeding) (applying Rule 18a to criminal cases)

. Appellant has not filed a peti tion for writ of mandamus with this Court and his use of the term “mandamus ” in his notice of appeal and amended no tice of appeal is not tantamount to fil ing a mandamus petition. See T EX

. R. A PP

. P. 52.1 ( “An original appellate proceeding seeking extraordinary relief

-- such as a writ of hab eas co rpus, mandamus , prohibiti on,2 injunction, or quo warranto

-- is commenced by filing a petition with the clerk of the appropriate appellate court.” ) ( emphasis add ed ) ; see also T EX

. R. A PP

. P. 52.3 (form and contents of petition ) ; Fineberg v . State , No. 0 5

- 20

- 0 0163

- CR, 2020 WL 2110667 , at *4 (Tex. App.

— Dallas May 4, 2020, no pet

. ) (m em. op., not designated for publication ) (rejecting request to treat notice of appeal as mandamus petition; two

- page notice did not meet requirements of Rule 52)

. Moreover, as pre viously stated, Appellant ’ s case was dismissed in 2014. Thus, there is

n o final judgment of conviction

. See Petty v . State , 800 S.W

. 2d 582 , 584 ( Tex

. App

. — Tyler 1990 , no wri t ) (o rder dismissing indictment is not an order from which an appellant may
app eal ) ; see also Ward v. State , 2019 WL 4 296518, at *1 (Tex. App.

— Tyler Sept. 11, 2019, no pet.) (mem. op., not designated for publication) (per curiam) (same) ; Sinclair v. State , No. 01

- 18

- 00479

- CR, 2018 WL 4132258, at *1 (T ex. App.

— Houston [1st Dist.] Aug. 30, 2 018, no pet.) (mem. op., not designated for publicatio n) (dismissing appeal for want of jurisdiction where there wa s no judgment of conv iction , only an order of dismissal )

. And “[t] here is no ‘ other law ’ allowing an interlocutory appeal of a n order denyi ng a motion to disqualify in a criminal case. ” Muh ammad v. State , No. 08

- 18

- 00125

- CR, 2018 WL 3751742, at *1 (Tex. App.

— El Paso Aug. 8, 2018, pet. ref ’d ) (mem. op., not designated for publication). Accordingly, becau se an interlocutory ap peal of the order denying Appellant ’s motion to disqualif y is not authorized , we conclude that we lack jurisdiction to co nsider this appeal. See
T EX

. R. A P P

. P

. 43.2(f). We dismiss the appeal for want of jurisdiction

. Opinion delivered November 10, 2021. Panel consis ted of W orthen, C.J., Hoyl e, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELF TH COU RT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOV EMBER 10 , 2021

NO. 12

- 21

- 00183

- CR

SAMUEL HALE , Appellant V. THE STA TE OF TEXAS , Appellee

Appe al from the 420th District Court of Nacogdoches County, Texas (Tr.Ct.No. F1320029 )
THIS CAU SE came on to be he ard on t he appellate record, and the same being c onsidered, it is the opinion of this Court that it is wi thout juri sdiction of th e appeal, and th at the ap peal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Cou rt that this appeal be, and the same is, hereby dism issed for want o f jurisdiction ; and that this decision be certified to t he court b elow for obser vance. By per cu riam opinion

. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.