                                 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.

                                              2
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




                                             3
