Opinion
09-22-00052-CR
05-04-2022
DONALD FOSTER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on May 3, 2022
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 28338
Before Golemon, C.J., Kreger and Johnson, JJ.
MEMORANDUM OPINION
PER CURIAM
Donald Foster filed a notice of appeal from the trial court's order denying his motion to dismiss the indictment. The court requested a written reply from the parties identifying the particular statute or rule authorizing an appeal at this time. We warned the parties that we would dismiss the appeal for lack of jurisdiction unless our jurisdiction over the appeal is established. After we issued our notice, we received a supplemental clerk's record with an additional pro se notice of appeal from an order denying a motion to recuse.
The time for filing a reply has expired and Foster has not shown that he has been convicted and sentenced in the trial court. "The courts of appeals do not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by law." Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). The right to appeal in criminal cases is conferred by statute, and a party may appeal only from a judgment of conviction or an interlocutory order as authorized by statute. See Tex. Code Crim. Proc. Ann. art. 44.02; Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014). We lack jurisdiction to review an interlocutory order denying a motion to set aside an indictment. Ahmad v. State, 158 S.W.3d 525, 526 (Tex. App.-Fort Worth 2004, pet. ref'd). Furthermore, an order denying a motion to recuse is reviewable only on appeal from the final judgment. See Green v. State, 374 S.W.3d 434, 445 (Tex. Crim. App. 2012); see also Tex. R. Civ. P. 18a(j)(1)(A).
In a criminal case, the time for filing the notice of appeal from a conviction commences on the date the appellant is sentenced in open court. See Tex. R. App. P. 26.2. That event has not occurred. We dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 43.2(f).
APPEAL DISMISSED.