Thomas Alfred Gilcrease v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-01-00255-CR
Thomas Alfred GILCREASE,
Appellant
v.
STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 99-CR-0471
Honorable Raymond Angelini, Judge Presiding

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 23, 2001

DISMISSED FOR WANT OF JURISDICTION

Appellant filed an appeal of the trial court's order denying his motion for a free copy of the record in order to prepare a petition for writ of habeas corpus. Appellant's conviction was affirmed by this court on September 6, 2000 in Cause No. 04-99-00653-CR. Appellant filed a petition for discretionary review on December 4, 2000. While the petition was pending in the Court of Criminal Appeals, appellant filed his motion for a free record. The petition for writ of discretionary review was refused on April 6, 2001; our mandate issued on April 19, 2001.

The record before this court does not contain an appealable order. We do not have jurisdiction over interlocutory orders unless jurisdiction has been expressly granted by law. See Ex parte Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). The narrow exceptions to this rule do not apply here, and we have found no statute authorizing this court to address an appeal of an order denying a free copy of a record after appellant's conviction has been affirmed. Therefore, this court is without jurisdiction over this appeal.

Further, this court has no jurisdiction over post-conviction writs of habeas corpus in felony cases. See Tex. Code Crim. P. Ann. art. 11.07; In re Coronado, 980 S.W.2d 691, 692 (Tex. App.-San Antonio 1998, orig. proceeding) (citing Hoang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993)). Post-conviction writs of habeas corpus are to be filed in the trial court in which the conviction was obtained, and made returnable to the Court of Criminal Appeals. Tex. Code Crim. P. Ann. art. 11.07 (Vernon Supp. 2001). The trial court's refusal to provide appellant with a free copy of the record does not invoke our jurisdiction. See Coronado, 980 S.W.2d at 692-93.

Even if we had jurisdiction over this matter, appellant would not be entitled to a free record. An indigent appellant is entitled to obtain a free record for purposes of appeal but not for purposes of collateral attack, such as a writ of habeas corpus. See In re Coronado, 980 S.W.2d 691, 693 (Tex. App.-San Antonio 1998, orig. proceeding); Escobar v. State, 880 S.W.2d 782, 783 (Tex. App.-Houston [1st Dist.] 1993, no pet.). Neither federal due process nor equal protection requires the State to furnish a free record to an indigent prisoner. See United States v. MacCollom, 426 U.S. 317 (1976); Escobar, 880 S.W.2d at 784. To obtain a free record at this juncture, appellant must demonstrate that his claim is not frivolous and that the record is needed to decide the issue presented. MacCollom, 426 U.S. at 326; Escobar, 880 S.W.2d at 784. Nothing in the appellant's motion or the record demonstrates that these prerequisites have been met.

Accordingly, this appeal is dismissed for want of jurisdiction.

PER CURIAM

DO NOT PUBLISH