                                           NO. 07-09-0128-CR

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                  PANEL C

                                                JULY 7, 2009

                                ______________________________


                             EX PARTE GREGORY DEAN BANISTER

                             _________________________________

                 FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                        NO. 3900-A; HONORABLE FELIX KLEIN, JUDGE

                               _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                       MEMORANDUM OPINION


        Appellant, Gregory Dean Banister, proceeding pro se and in forma pauperis, filed

a notice of appeal seeking to challenge an order signed by the Honorable Kelly G. Moore

denying his motion to recuse the Honorable Felix Klein from participating in the resolution

of a writ of habeas corpus filed in the 154th District Court of Lamb County,1 pursuant to


        1
          In conjunction with the sam e proceeding, Appellant also filed a Petition for W rit of Mandamus seeking
to com pel Judge Klein to rule on num erous m otions relating to that writ of habeas corpus. By opinion dated
April 30, 2009, Appellant’s request for m andam us relief was denied. See In re Gregory Dean Banister, No.
07-09-0117-CV, 2009 W L 1160966 (Tex.App.–Am arillo April 30, 2009, orig. proceeding).
article 11.07, section 3(b) of the Texas Code of Criminal Procedure. Having considered

the substantive basis of this appeal, we dismiss for want of jurisdiction.


       This Court is obligated to determine, sua sponte, its jurisdiction to entertain an

appeal. Welch v. McDougal, 876 S.W.2d 218, 220 (Tex.App.–Amarillo 1994, writ denied)

(citing New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2s 677, 678 (Tex. 1990));

State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996), overruled on other grounds,

State v. Medrano, 67 S.W.3d 892, 901-03 (Tex.Crim.App. 2002). As a general rule, a

judgment must be final before it can be appealed. See Lehmann v. Har-Con Corp., 39

S.W.3d 191, 195 (Tex. 2001). Otherwise, the appeal is interlocutory and this Court is

without jurisdiction to review the decision except for those statutory exceptions permitting

interlocutory appeals. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon 2008).

A trial court’s ruling on a motion to recuse does not fall within one of those exceptions.


       Recusal is governed by Rule 18a of the Texas Rules of Civil Procedure. In Arnold

v. State, 853 S.W.2d 435, 544 (Tex.Crim.App. 1993), the Court held that Rule 18a applies

to criminal cases absent “any explicit or implicit legislative intent indicating otherwise.”

Rule 18a(f) provides in part that if a motion to recuse is denied, it may be reviewed on

appeal from a final judgment.


       By letter dated April 24, 2009, the Clerk of this Court advised Appellant that the

order being appealed appeared to be interlocutory. Appellant was afforded until May 14,

2009, to demonstrate grounds for continuing the jurisdiction of this Court. See Tex. R.

                                             2
App. P. 42.3(a). That deadline was extended to June 15, 2009, after an extension of time

was granted. On June 16, 2009, Appellant filed a Motion Demonstrating Why This Court

Should Not Dismiss Banister’s Appeal For Want Of Jurisdiction.


         By that motion, Appellant argues that the Legislature intended for interlocutory

orders to be appealable. He also questions whether the “collateral order doctrine”2 permits

this Court to exercise jurisdiction over an order on a motion to recuse that does not arise

from a final judgment. We conclude that the collateral order doctrine does not apply. See

In re AIU Ins. Co., 148 S.W.3d 109, 120 (Tex. 2004).


         Appellant’s complaint is adequately vindicable in the Court of Criminal Appeals.

Under article 11.07, section 3(b) of the Texas Code of Criminal Procedure, his application

for writ of habeas corpus is returnable to the Court of Criminal Appeals. Additionally, the

Court of Criminal Appeals is the only court with jurisdiction in a writ of habeas corpus

proceeding filed pursuant to article 11.07, section 3(b). See Ater v. Eighth Court of

Appeals, 802 S.W.2d 241, 243 (Tex.Crim.App. 1991). A convicting court’s role, in this

case, the 154th District Court of Lamb County, is defined in article 11.07, section 3(c) and

(d). Article 11.07, section 5 clearly provides that “[a]fter conviction the procedure outlined

in this Act shall be exclusive and any other proceeding shall be void and of no force and


         2
           The “collateral order doctrine” is a federal doctrine which perm its appellate review of certain
interlocutory rulings which finally determ ine claim s of right separate from , and collateral to, rights asserted in
the action, too im portant to be denied review and too independent of the cause itself to require that appellate
jurisdiction be deferred until the whole case is adjudicated. Midland Asphalt Corp. v. United States, 489 U.S.
794, 798, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989); Taylor v. State, 268 S.W .3d 752, 754 (Tex.App.–W aco
2008, pet. ref’d).

                                                         3
effect in discharging the prisoner.” Article 11.07 contains no role for courts of appeals. In

re McAfee, 53 S.W.3d 715, 718 (Tex.App.–Houston [1st] Dist. 2001, orig. proceeding).

Therefore, we conclude that a trial court’s ruling on a motion to recuse stemming from an

11.07 application for writ of habeas corpus is not reviewable by direct appeal to courts of

appeals.


       Notwithstanding Appellant’s diligent effort, this Court cannot create jurisdiction

where none exists.     Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).

Consequently, Appellant has failed to demonstrate why this purported appeal should not

be dismissed for want of jurisdiction.


       Accordingly, the appeal is dismissed for want of jurisdiction. Tex. R. App. P.

42.3(a).


                                                  Patrick A. Pirtle
                                                      Justice


Do not publish.




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