Michael Dekneef, Jr. v. The State of TexasAppeal from 427th District Court of Travis County (memorandum opinion )

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-00699-CR Michael Dekneef, Jr., Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT NO. D-1-DC-10-100020, THE HONORABLE JIM CORONADO, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted appellant Michael Dekneef, Jr. of three counts of aggravated sexual assault of a child under the age of six, and assessed his punishment at confinement for 55 years in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine for each count. See Tex. Penal Code § 22.021(a)(1)(B), (2)(B), (f)(1). On August 22, 2012, the Amarillo Court of Appeals affirmed his convictions. See Dekneef v. State, 379 S.W.3d 423, 434 (Tex. App. Amarillo 2012, pet. ref d). Petition for discretionary review was denied by the Court of Criminal Appeals on January 16, 2013. See Official Site of the Texas Court of Criminal Appeals, http://www.cca.courts.state.tx.us/opinions/EventInfo.asp?EventID=2510932 (last visited December 12, 2013). Subsequently, Dekneef filed various pro se motions with the district clerk.1 On 1 On February 18, 2013, Dekneef filed documents entitled Motion to Compel Subpeona [sic] Duce [sic] Tecum, Subpeona [sic] Duce [sic] Tecum, Motion for Petition for Discloser [sic] of Grand Jury Proceedings and Testimony, and Motion of Request to Reverse Conviction for October 11, 2013, Dekneef filed a Notice of Appeal of Recent Motion s that purports to appeal the trial court s assumed denial of his pro se motions. We do not have jurisdiction over such an appeal. DISCUSSION No Signed Order In criminal cases, this Court has jurisdiction to consider appeals from the entry of an appealable order. See Tex. R. App. P. 25.2; Tex. Code Crim. Proc. art. 44.02; see also Tex. R. App. P. 26.2(a)(1). However, there must be a written, signed order from which to appeal. See State v. Sanavongxay, 407 S.W.3d 252, 259 (Tex. Crim. App. 2012) (Court of Criminal Appeals noted that our precedent requires that an order be in writing when discussing State s statutory right to appeal pretrial suppression order); see also State v. Rosenbaum, 818 S.W.2d 398, 401 02 (Tex. Crim. App. 1991) (holding that for purposes of appeal, trial court enters order when judge signs order). Here, the record before us contains no written orders signed by the trial court denying appellant s various motions. Thus, there is no entry of any appealable orders. Contrary to Dekneef s assertion, there is no assumed ruling of denial that allows him the right to appeal. Improper Grand Jury Procedure. On April 16, 2013, he filed two documents entitled Motion to Quashing [sic] Indictment in Felony and Judicial Notice. Finally, on June 18, 2013, he filed documents entitled Motion to Arrest of Judgment, Motion to Set Aside Indictment, and Motion for New Trial. 2 Not Appealable Orders Even had the trial court signed orders denying Dekneef s pro se motions, we find no authority for Dekneef to appeal these orders. The right to appeal is conferred by the Legislature and generally, a party may appeal only those cases for which the Legislature has authorized appeal. Keaton v. State, 294 S.W.3d 870, 871 (Tex. App. Beaumont 2009, no pet.); see Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); In re Court of Inquiry, 326 S.W.3d 372, 373 (Tex. App. Texarkana 2010, no pet.); see also Olowosuko v. State, 826 S.W.2d 940, 941 (Tex. Crim. App. 1992) ( It is axiomatic that a party may appeal only that which the Legislature has authorized. ). This Court s jurisdiction is derived from the Constitution of the State of Texas, which provides that the courts of appeals have appellate jurisdiction under such restrictions and regulations as may be prescribed by law. Sanchez v. State, 340 S.W.3d 848, 849 (Tex. App. San Antonio 2011, no pet.); see Tex. Const. art. V, § 6(A). The standard of determining whether an appellate court has jurisdiction to hear and determine a case is not whether the appeal is precluded by law, but whether the appeal is authorized by law. Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696 97 (Tex. Crim. App. 2008)); Sanchez, 340 S.W.3d at 849. Article 44.02 of the Texas Code of Criminal Procedure provides that [a] defendant in any criminal action has the right of appeal under the rules hereinafter prescribed . . . . Tex. Code Crim. Proc. art. 44.02; see Tex. R. App. P. 25.2(A)(2) (defendant has the right of appeal under Code 3 of Criminal Procedure article 44.02 and these rules in every case in which trial court enters a judgment of guilt or other appealable order ). However, in the absence of a positive legislative enactment, this statutory right of appeal has generally been restricted to persons convicted of offenses and those denied release under the writ of habeas corpus. Sanchez, 340 S.W.3d at 849 (quoting Celani v. State, 940 S.W.2d 327, 329 (Tex. App. San Antonio 1997, pet. ref d) and De Silva v. State, 267 S.W. 271, 272 (Tex. Crim. App. 1924)); see Abbott, 271 S.W.3d at 697 n.8 (noting Court s prior recognition of long-established rule that a defendant s general right to appeal under Article 44.02 has always been limited to appeal from a final judgment. ); McIntosh v. State, 110 S.W.3d 51, 52 (Tex. App. Waco 2002, no pet.) (defendant has right to appeal from final judgment of conviction or when expressly granted by law ) (internal quotes omitted). We find no constitutional or statutory provision granting Dekneef the right to appeal these post-conviction motions. No Certification of Right to Appeal Furthermore, the trial court certification in the record reflects that Dekneef has no right of appeal. We are required to dismiss an appeal if a certification that shows the defendant has a right of appeal has not been made part of the record. See Tex. R. App. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). CONCLUSION We hold that we lack jurisdiction over Dekneef s appeal of the assumed denial of his post-conviction pro se motions because (1) there are no signed written orders denying his 4 motions, see Sanavongxay, 407 S.W.3d at 259 (affirming appellate court s dismissal for lack of jurisdiction because there was no written order from which to appeal), (2) there is no authority for the appeal Dekneef attempts, see Staley v. State, 233 S.W.3d 337, 338 (Tex. Crim. App. 2007) (defendant s appeal dismissed because it was not authorized by law), and (3) the record contains a certification indicating that Dekneef has no right to appeal, see Tex. R. App. P. 25.2(d). Accordingly, we dismiss Dekneef s appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f). __________________________________________ Melissa Goodwin, Justice Before Justices Puryear, Rose, and Goodwin Dismissed for Want of Jurisdiction Filed: December 20, 2013 Do Not Publish 5

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