## NO. 12

- 21

- 00179

- CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

ZACHARY SMITH , APP E

LLANT

V.
THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 420TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OP INION PER CURIAM Zacha ry Smith appeals from a Septe mber 16, 2021 , order de nying his motion to disqualify the tria l court judge. His sentence was o riginal ly imposed on Decem ber 19, 2013

. 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., t he order being appealed is not an appea la ble order. The notice further advised that the appeal would be dismissed unl ess the notice of appeal was amended on or be fore November 12, 2 021 to show this Court ’s jurisdiction. Appellant filed an amended notice of appeal , stating his “intent to appea l by Mandamus Application for Appeal ” to this Court on the denial of the motion to disqualify , “an appeal from a j udgement made on September 16 th , 2021. ” An order granting or denying a motion to disqualify may be re viewed 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) (app lying Rule 18a to criminal cases)

. App ellant 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 not ice of appeal is not tantamount to filing a mandamus petition. See T EX

. R

. A PP

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

-- such as a writ of habeas corpus, mandamus , prohibiti on, injunction, or quo
warranto

-- is commenced by f iling a petition with the clerk of the appropriate appellate court.” )2 ( emp hasis add ed ) ; see also T EX

. R. A PP

. P. 52.3 (form and contents of petition ) ; Fineberg v . State , No. 05

- 20

- 00163

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

— Dallas May 4, 2020, no pet

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

- pa ge notice did not meet requirements of Rule 52)

. Moreover, Appellant did not timely appeal his conviction. In a criminal case, the appellan t perfects an appeal by timely filing a sufficient notice of appeal. T EX

. R. A PP

. P. 25.2(b). The notice of app eal must be filed (1) within thirty days after th e day sentence is imposed or

su spended in open court or afte r the day the trial court enters a n appealable order, or (2) within ninety days after the day sentence is im posed or suspended in open court if the defendant timely files a motion for new trial

. T EX

. R. A PP

. P. 26.2 (a)

. Here, Appellant filed his notice of appeal on October 12, 2021, long after the time expired for filing a notice o f appeal from his conviction. Accordingly, the denial of the motion to disqualify is no t before this Court in a timely appeal from

a final judgment. See Fineberg , 2020 WL 2110667 , at *4 ( postconviction orders denying motions to disqualify district attorney ’s office and recuse trial judge w ere interlocutory ; although 2016 conviction was final , appellant did not timely appeal and because t here was no final judgment over which appellate court had jurisdiction, i t could not consider denial s of motions) ; see also Hauk v. State , No. 10

- 18

- 00200

- CR, 2018 WL 5849778, at *1 (T ex. App.

— Waco Nov. 7, 2018 , pet. ref ’d ) (mem. op., not designated for publication) (dismissing appeal for want of jurisdiction where appellant did not seek review of post

- conviction written order denying motion for disqua lification and recusal of trial judg e i n an appeal from final judgment of conviction and
sentence but sought review of post

- conviction written order denying motion for disqualificati on and recusal in a direct appeal from order itself )

. And “[t] here is no ‘ other law ’ allowing an interlocutory ap peal of a n order denying 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 publicatio n). Accordingly, because an interlocuto ry appeal of the order denying Appellant ’s motion to disqualif y is not authorized and the motion is not being appealed as part of a timely appe al from a final judgment of conviction , we conclude that we lack jurisdict ion to co nsider this appeal. See T EX

. R. A PP

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

. Opinion delivered November 10, 2021. Panel cons isted of Worthen, C.J., Hoy le, J., and Neeley, J. ( DO NOT PUBL ISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

NOVEMBER 10 , 2021

NO. 12

- 21

- 00179

- CR

ZACHARY SMITH , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 420th District Court of Nacogdoches County, Texas (Tr.Ct.No. F1320289

- A )
T HIS CAU SE came on to be heard on the appellate record, and the same being considered, it is the opinion of this Court that it is wi thout juri sdiction of the appeal, and th at the ap peal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by t his Cou rt that this appeal be, and the same is, hereby dism issed for want of jurisdiction ; and that this decision be certified to t he court b elow for observance. By per curiam opinion

. Panel consisted of W orthen, C.J., Hoyle, J. and Neeley, J.