                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-17-00170-CR

                                         Alice Vega FIALA,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                    Trial Court No. NM 308410
                           Honorable Andrew Carruthers, Judge Presiding

PER CURIAM

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 26, 2017

DISMISSED FOR WANT OF JURISDICTION

           Appellant filed a notice of appeal on March 24, 2017. In her notice of appeal, appellant

states she is appealing “the denial of her CONSTITUTIONAL RIGHTS” and references a jury

trial that was held on March 22 through March 23 of 2017. A review of the clerk’s record shows

appellant was charged by complaint with theft under $2,500 enhanced. The record also shows the

trial court granted a motion for a psychiatric examination to determine appellant’s competency.

The clerk’s record includes a judgment of competency dated March 23, 2017. The judgment
                                                                                                     04-17-00170-CR


indicates a jury found appellant competent to stand trial. The clerk’s record does not include any

other judgment or order, and it appears the theft charge remains pending. 1

         In general, we have jurisdiction to consider an appeal in a criminal case only when there

has been a final judgment of conviction. See Taylor v. State, 268 S.W.3d 752, 755–56 (Tex.

App.—Waco 2008, pet. ref’d); Ahmad v. State, 158 S.W.3d 525, 527 (Tex. App.—Fort Worth

2004, pet. ref’d). Appellate courts do not have jurisdiction to review interlocutory orders unless

that jurisdiction has been expressly granted by law. Apolinar v. State, 820 S.W.2d 792, 794 (Tex.

Crim. App. 1991); Taylor, 268 S.W.3d at 755–56. Article 46B.011 of the Texas Code of Criminal

Procedure (“the Code”) expressly provides that a defendant may not “make an interlocutory appeal

relating to a determination or ruling under Article 46B.005.” TEX. CODE CRIM. PROC. ANN. art.

46B.011 (West 2006). Article 46B.005 of the Code outlines when a trial court must hold a hearing

to determine whether a defendant is incompetent to stand trial. See id. art. 46B.005. A hearing

held to determine competency is ancillary to prosecution of the criminal case, and a trial court’s

order of competency is not a final, appealable judgment. See Ortega v. State, 82 S.W.3d 748, 749

(Tex. App.—Houston [1st Dist.] 2002, no pet.); see also Queen v. State, 212 S.W.3d 619, 622

(Tex. App.—Austin 2006, no pet.) (stating interlocutory appeal may not be had from orders

entered under chapter 46B, subchapter D, i.e., articles 46B.071–.090, of the code of criminal

procedure); Hart v. State, 173 S.W.3d 131, 143 (Tex. App.—Texarkana 2005, no pet.) (stating

jury’s determination of competency to stand trial is not final, appealable judgment).

         Based on the foregoing, it appeared from the record before us that the judgment appellant

is attempting to appeal relates to a determination of competency, which is a ruling under Article



1
  The clerk’s record also includes a trial court certification in which the trial court indicates this matter “is a
determination of competency to stand trial rendered by a jury and the defendant has no right to an interlocutory appeal
– 46B.011 C.C.P.”

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                                                                                       04-17-00170-CR


46.005. It therefore appeared that we lacked jurisdiction over this appeal. As a result, we ordered

appellant to file in this court, on or before June 5, 2017, a response showing cause why this appeal

should not be dismissed for want of jurisdiction. In our order, we advised appellant that if no

satisfactory response was filed within the time provided, the appeal would be dismissed for want

of jurisdiction. See TEX. R. APP. P. 42.3(c). On June 2, 2017, appellant requested an extension of

time to file her response, and we granted appellant’s request, ordering appellant to file her response

on or before July 7, 2017. Thereafter, appellant timely filed a response, arguing the Texas Code

of Criminal Procedure as applied is unconstitutional and “deprives appellant of equal protection

and due process of law.” In her response, appellant explains why the trial court erred in rendering

an order declaring her competent to stand trial. However, at no point does appellant show why the

order declaring her competent to stand trial is a final and appealable order.

       Because appellant has not been finally convicted and sentenced, we therefore dismiss the

appeal for want of jurisdiction.

                                                   PER CURIAM

Do Not Publish




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