NO. 12-21-00179-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ZACHARY SMITH, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

§

APPEAL FROM THE 420TH 

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

Zachary Smith appeals from a September 16, 2021, order denying his motion to disqualify 

the trial court judge. His sentence was originally imposed on December 19, 2013.

On October 12, 2021, the Clerk of this Court notified Appellant that the notice of appeal 

does not show the jurisdiction of this Court, i.e., the order being appealed is not an appealable 

order. The notice further advised that the appeal would be dismissed unless the notice of appeal 

was amended on or before 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 judgement made on 

September 16th, 2021.” 

An order granting or denying a motion to disqualify may be reviewed by mandamus and 

may be appealed in accordance with other law. TEX. R. CIV. P. 18a(j)(2); see DeLeon v. Aguilar, 

127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding) (applying Rule 18a to criminal cases). 

Appellant has not filed a petition for writ of mandamus with this Court and his use of the term 

“mandamus” in his notice of appeal and amended notice of appeal is not tantamount to filing a 

mandamus petition. See TEX. R. APP. P. 52.1 (“An original appellate proceeding seeking 

extraordinary relief--such as a writ of habeas corpus, mandamus, prohibition, injunction, or quo 

warranto--is commenced by filing a petition with the clerk of the appropriate appellate court.”) 
2

(emphasis added); see also TEX. R. APP. 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.) (mem. 

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, Appellant did not timely appeal his conviction. In a criminal case, the appellant 

perfects an appeal by timely filing a sufficient notice of appeal. TEX. R. APP. P. 25.2(b). The 

notice of appeal must be filed (1) within thirty days after the day sentence is imposed or 

suspended in open court or after the day the trial court enters an appealable order, or (2) within 

ninety days after the day sentence is imposed or suspended in open court if the defendant timely 

files a motion for new trial. TEX. R. APP. P. 26.2(a). Here, Appellant filed his notice of appeal on 

October 12, 2021, long after the time expired for filing a notice of appeal from his conviction. 

Accordingly, the denial of the motion to disqualify is not 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 were interlocutory; although 2016

conviction was final, appellant did not timely appeal and because there was no final judgment 

over which appellate court had jurisdiction, it could not consider denials of motions); see also

Hauk v. State, No. 10-18-00200-CR, 2018 WL 5849778, at *1 (Tex. 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 

disqualification and recusal of trial judge in an appeal from final judgment of conviction and 

sentence but sought review of post-conviction written order denying motion for disqualification 

and recusal in a direct appeal from order itself). And “[t]here is no ‘other law’ allowing an 

interlocutory appeal of an order denying a motion to disqualify in a criminal case.” Muhammad 

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, because an interlocutory appeal of the order denying Appellant’s motion to 

disqualify is not authorized and the motion is not being appealed as part of a timely appeal from a

final judgment of conviction, we conclude that we lack jurisdiction to consider this appeal. See 

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

Opinion delivered November 10, 2021.

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

(DO NOT PUBLISH)
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)

THIS CAUSE came on to be heard on the appellate record, and the same 

being considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and 

that the appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that 

this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision 

be certified to the court below for observance.

By per curiam opinion.

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