

NO. 07-10-00328-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

JANUARY
21, 2010
 

 
MICHAEL ANTHONY DIAZ, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 222ND DISTRICT COURT OF DEAF
SMITH COUNTY;
 
NO. CR-07F-105; HONORABLE ROLAND D. SAUL, JUDGE

 

 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
 
In October 2007, appellant, Michael Anthony
Diaz, was convicted of assault on a public servant.  On direct appeal of that conviction, we
affirmed the trial court’s judgment.  See
Diaz v. State, No. 07-07-00438-CR, 2008 Tex.App.
LEXIS 9655 (Tex. App.—Amarillo Dec. 29, 2008, pet. ref’d) (mem. op., not designated
for publication).
            On
April 26, 2010, Diaz filed his Motion to Withdraw the Trial Record in which he
sought to check out the record of the 2007 trial so that he may prepare his
application for post-conviction writ of habeas corpus.  The trial court denied his motion.  On August 9, Diaz filed a notice of appeal in
which he explains that he attempts to appeal from the trial court’s denial of
his Motion to Withdraw the Trial Record.
            On
December 13, 2010, this Court sent a letter to Diaz noting that it appeared
that the Court was without jurisdiction over his appeal. The Court directed him
to respond by showing how the Court had jurisdiction and warned him that,
unless grounds were shown to continue the appeal, his appeal was subject to dismissal.
See Tex. R.
App. P. 42.3(c). He was
given until December 28, 2010, to comply. 
We received appellant’s response in which he urges his right to
prosecute his claim of ineffective assistance of counsel by way of application
for writ of habeas corpus.  He also
attempts to explain how the trial court’s order denying his motion is a final
judgment.  Finally, he attempts to
distinguish his case from another case in which the Eastland court concluded
that a similar order was not a final, appealable order.  See Self v. State, 122 S.W.3d
294, 294–95 (Tex.App.—Eastland 2003, no pet.).  Though appellant responds directly to the
jurisdictional issue with developed arguments, we remain unconvinced that we
have jurisdiction over this appeal.
            The
jurisdiction of all Texas courts is conferred solely by the Texas Constitution
and state statutes.  Chenault v. Phillips,
914 S.W.2d 140, 141 (Tex. 1996). 
A Texas court does not have jurisdiction to decide any case absent an
express constitutional or statutory grant. 
Id.  Courts of appeals have
appellate jurisdiction as specified in section 6 of the Texas Constitution,
together with such other original and appellate jurisdiction as may be
prescribed by law.  Tex. Const. art. V, §
6.  Generally, a Texas appellate
court has jurisdiction to hear an appeal only if it is from a final
judgment.  See Tex. Civ. Prac.
& Rem. Code Ann. § 51.012 (West Supp. 2010); Lehmann v. Har-Con Corp., 39 S.W.3d 191,195 (Tex. 2001).  Appellate courts have jurisdiction to
consider immediate appeals of interlocutory orders only if a statute explicitly
provides appellate jurisdiction.  Stary
v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998).
            The
trial court’s order denying Diaz’s motion to withdraw the trial record does not
invoke our jurisdiction.  We are not
vested with jurisdiction to consider an appeal from such an order.  See Self, 122
S.W.3d at 294–95.  Furthermore, as
an intermediate appellate court, we have no jurisdiction over post-conviction
writs of habeas corpus in felony cases. 
See Tex. Code
Crim. Pro. Ann. art.
11.07 (West Supp. 2010); Self, 122 S.W.3d at 295.
            Without
a final, appealable order, we are without jurisdiction to entertain this
appeal.  Because the record does not
affirmatively demonstrate that we have jurisdiction, we must dismiss the
appeal.  See Hosea v. Whittenburg, 311 S.W.3d 704, 704–05 (Tex.App.—Amarillo 2010, pet. denied).  Accordingly, we dismiss this appeal for want
of jurisdiction.  See Tex. R. App. P. 42.3(a).
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
 
 

