## NO. 12

- 21

- 00182

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

DYLAN FRENCH , APPE L LANT
V.
THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 420TH

JUDICIAL DISTRICT COURT

NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPI NION PER CURIAM Dylan French appeals from a Septe mber 16, 2021 , order deny ing his motion to disqualify the trial court judge. His sentence was o riginal ly imposed on January 24 , 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 b le 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, 2021 to show this Court ’s jurisdiction. Appellant filed an amended notice of appeal , stating his “intent to appeal b y 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 revie wed by mandamus and may be appealed in accordance with other law. T EX

. R. C IV

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

. Appell ant 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 notice of appeal is not tantamount to filing a mandamus petition. See T EX

. R. A PP

. P. 52.1 ( “An original appellate pro ceeding seeking extraordinary relief

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

-- is commenced by fili ng a petition with the clerk of the appropriate appellate court.” )2 ( emphas is 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

. ) (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 p erfects an appeal by timely filing a sufficient notice of appeal. T EX

. R. A PP

. P. 25.2(b). The notice of appeal 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 an a ppealable order, or (2) within ninety days after the day sentence is impos ed or suspended in open court if the de fendant 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 af ter the time expired for filing a notice o f appeal from his conviction. A ccordingly, 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 den ying motions to disqualify district attorney ’s office and recuse trial jud ge w ere interlocutory ; although 2016

co nviction was final , appellant did not timely appeal and because t here was no final judgment over which appellate court had jurisdiction, i t cou ld not consider denial s of motions) ; see also Hauk v. State , No. 10

- 18

- 002 00

- 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 disqualif ication and recusal of trial judg e in a n 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 ‘ oth er law ’ allowing an interlocutory appea l 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 publication). Accordingly, because an interlocutory 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 appeal from a final judgment of conviction , we conclude that we lack jurisdiction 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 consi sted of Worthen, C.J., Hoyle, J., and Neeley, J. ( DO NOT PUBLIS H )

## COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

NOVEMBER 10 , 2021

NO. 12

- 21

- 00182

- CR

DYLAN FRENCH , Appellant V. THE S TATE OF TEXAS , Appellee
Appeal from the 420th District Court of Nac ogdoches County, Texas (Tr.Ct.No. F12 19452

- A ) THIS 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 DE CREED by this 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 Worth en, C.J., Hoyle, J. and Neeley, J

.