H. F. Westerman, Jr. v. State

IN THE TENTH COURT OF APPEALS No. 10-04-00292-CR H. F. Westerman, Jr., Appellant v. The State of Texas, Appellee From the County Court at Law No 2 McLennan County, Texas Trial Court No. 20034654CR2 recusal I hereby recuse myself from further participation in this case. Tex. R. Crim. Proc. Ann., art. 30.01 (Vernon Supp. 2004-05); Tex. Code Jud. Conduct, Cannons 1, 2, and 3 (B)(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005); Tex. R. App. P. 16.1 and 16.2; and Tex. R. Civ. P. 18b(1)(c) and 18b(2)(f)(iii). TOM GRAY Chief Justice Date: ______________ 8212;Waco Dec. 31, 2002, order). The trial court denied Sossamon’s motion to review the appellate record by order signed on December 13, 2002. Sossamon filed a notice of appeal on December 20, seeking appellate review of the trial court’s order. This Court recently addressed a similar situation in an attempted appeal from the denial of an untimely request for a free appellate record. See Everett v. State, 91 S.W.3d 386 (Tex. App.—Waco 2002, no pet.). Article V, section 6 of the Texas Constitution invests this Court with jurisdiction over “all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law.” Article 44.02 of the Code of Criminal Procedure provides in pertinent part, “A defendant in any criminal action has the right of appeal.” Texas courts have consistently construed article 44.02 to allow an appeal only “from a ‘final judgment [of conviction],’ though the statute does not contain this limitation on its face.” Benford v. State, 994 S.W.2d 404, 408-09 (Tex. App.—Waco 1999, no pet.) (quoting State v. Sellers, 790 S.W.2d 316, 321 n. 4 (Tex. Crim. App.1990)). This Court has jurisdiction over other types of criminal appeals only when “expressly granted by law.” Benford, 994 S.W.2d at 409 (quoting Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App.1991)). A defendant in a criminal case should perfect a separate appeal when a trial court denies his request for a free appellate record. See Nelson v. State, 6 S.W.3d 722, 726 (Tex. App.—Waco 1999, order, no pet.). However, no statute vests this Court with jurisdiction over an appeal from an order denying a request for a free copy of the trial record when such a request is not presented in conjunction with a timely-filed appeal. Accordingly, we dismiss this appeal for want of jurisdiction. Everett, 91 S.W.3d at 386 (other citations omitted). The trial court has not denied Sossamon a free appellate record. Thus, this is not the “separate appeal” contemplated in Nelson. Cf. 6 S.W.3d at 726. No statute vests this Court with jurisdiction over an appeal from an order denying a pro se request to review the record. In fact, the record has been provided to Sossamon pursuant to an order issued by this Court in the appeal from the judgment of conviction. See Sossamon, No. 10-02-231-CR, slip op. at 8, 2002 WL 31926391, at *4. Accordingly, we dismiss this appeal for want of jurisdiction. PER CURIAM Before Chief Justice Davis, Justice Vance, and Justice Gray Appeal dismissed for want of jurisdiction Opinion delivered and filed May 14, 2003 Do not publish [CRPM]