Opinion
01-22-00684-CR 01-22-00688-CR
12-06-2022
RICHARD A. DUNSMORE, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. TEX. R. APP. P. 47.2(b).
On Appeal from the 412th District Court Brazoria County, Texas Trial Court Case Nos. 56909, 56910
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PER CURIAM
On October 8, 2010, appellant, Richard A. Dunsmore, was convicted of the offenses of sexual assault and attempted sexual assault in trial court case numbers 56909 and 56910. On April 12, 2012, this Court dismissed Dunsmore's appeals from his 2010 convictions for lack of jurisdiction because Dunsmore did not timely file his notices of appeal. See Dunsmore v. State, Nos. 01-10-00981-CR, 01-10-00982-CR, 2012 WL 1249418, at *1 (Tex. App.-Houston [1st Dist.] Apr. 12, 2012, pet. ref d) (mem. op., not designated for publication).
On November 10, 2016, the trial court entered an order of commitment in connection with a final judgment on a unanimous jury verdict finding that Dunsmore was a sexually violent predator. See TEX. HEALTH & SAFETY CODE ANN. § 841.081; see also In re Commitment of Dunsmore, 562 S.W.3d 732, 736 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (affirming trial court's judgment and order of commitment).
On September 22, 2022, Dunsmore, proceeding pro se, filed two notices of appeal, assigned appellate case numbers 01-22-00684-CR and 01-22-00688-CR, attempting to appeal from the trial court's August 2, 2022 order denying Dunsmore's motion to recuse the Honorable Lamar McCorkle, Visiting Judge of the 412th District Court of Brazoria County.
Dunsmore previously filed a notice of appeal from a March 1, 2021 trial court order denying various motions filed by Dunsmore in trial court case numbers 56909 and 56910, including a "Motion for the Appointment of Counsel to Determine Brady Violation" and "Request to Consolidate Brady Violation and Prosecutorial Misconduct Hearings." On May 18, 2021, the Court dismissed those appeals for lack of jurisdiction. See Dunsmore v. State, Nos. 01-21-00181-CR, 01-21-00183-CR, 2021 WL 1970402, at *1-2 (Tex. App.-Houston [1st Dist.] May 18, 2021, no pet.) (mem. op., not designated for publication) (dismissing appeals for lack of jurisdiction where orders appealed were not final judgment or otherwise appealable).
We dismiss the appeals for lack of jurisdiction.
The right to appeal in criminal cases is conferred by statute, and a party may only appeal from a judgment of conviction or an interlocutory order as authorized by statute. See TEX. CODE CRIM. PROC. ANN. art. 44.02; TEX. R. APP. P. 25.2(a)(2); Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). A court of appeals does not have jurisdiction to review an interlocutory order in a criminal case when jurisdiction has not been expressly granted by statute. See Ragston, 424 S.W.3d at 52; see also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (explaining appeals "in a criminal case are permitted only when they are specifically authorized by statute"); Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010) (noting "an interlocutory appeal is an extraordinary remedy").
An order denying a motion to recuse is not a final, appealable order and may only be reviewed in an appeal from a final judgment. See Green v. State, 374 S.W.3d 434, 445-46 (Tex. Crim. App. 2012). An appeal of the trial court's order denying Dunsmore's motion to recuse, standing alone, is improper. Id. Here, Dunsmore is not challenging the order denying recusal in an appeal from the final judgments of conviction in his underlying criminal cases.
Because the trial court's order denying Dunsmore's motion to recuse was neither a final judgment nor an appealable interlocutory order, we hold that we lack jurisdiction over Dunsmore's appeals. Accordingly, we dismiss the appeals for lack of jurisdiction. See TEX. R. APP. P. 43.2(f). We dismiss any pending motions as moot.