DISMISS and Opinion Filed May 4, 2020




                                    S  In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-20-00163-CR

                       LISA ANN FINEBERG, Appellant
                                   V.
                       THE STATE OF TEXAS, Appellee

               On Appeal from the 204th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. F16-00021-Q

                         MEMORANDUM OPINION
           Before Chief Justice Burns, Justice Myers, and Justice Carlyle
                          Opinion by Chief Justice Burns
      Lisa Ann Fineberg filed a notice of appeal on July 10, 2019; for unknown

reasons, the notice was not forwarded to this Court until February 6, 2020. After the

clerk’s record was filed, we asked for jurisdictional briefing from the parties. Having

considered those letter briefs, we conclude we lack jurisdiction.

      Appellant was indicted for two charges of indecency with a child. Ex parte

Fineberg, PD-1024-17, 2018 WL 4762386, at *1 (Tex. Crim. App. 2018) (not

designated for publication). She entered into a plea agreement with the State; in

exchange for her guilty plea, the State agreed to dismiss the indecency charges and
instead charge appellant with two offenses of injury to a child (F16-00021-Q & F16-

00022-Q). The trial court sentenced her to ten years in each case, with the sentences

probated for ten years. Id. The trial court’s March 24, 2016 judgments included the

following “special findings or orders:”

             NO CONTACT WITH [complaining witness], NO CONTACT WITH
             ANY PERSON UNDER THE AGE 17 EXCEPT BIOLOGICAL
             CHILDREN.   COMPLIANCE       WITH       SEX   OFFENDER
             CONDITIONS.

The March 24, 2016 Conditions of Community Supervision specified (1) that the

trial court shall determine the terms and conditions of appellant’s supervision, and

“may at any time during the period of Supervision, alter or modify the conditions of

[Appellant’s] Supervision” and (2) appellant was “not [to] have any form of contact,

be it in person, by mail, telephone or any form of communication with any child 17

years of age or younger, directly or indirectly, EXCEPT FOR BIOLOGICAL

CHILDREN.” Id. at *2.

      Appellant did not appeal the March 2016 judgments and began sex offender

counseling in mid to late April 2016. On June 21, 2016, the trial court issued an

order, modifying appellant’s conditions of community supervision by prohibiting

her from being within 1000 feet of any child, including her own children. Id. This

occurred without any notification to appellant or to her attorney, without any type of

formal investigation or hearing being conducted, and without any motion to revoke,




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documentation from appellant’s probation officer, or motion to modify the

conditions being filed. Id.

      Appellant refused to sign the third modification order and filed objections.

She also sought to modify the conditions to allow her to have contact with her own

children. Appellant claimed she was denied due process, “was [not] afforded a

hearing,” and no evidence in the record supported the determination that she could

not be trusted with her own children or that such action was in her children’s best

interest. The trial court denied her motion without a hearing. Id.

      Appellant filed an application for a post-conviction writ of habeas corpus

under code of criminal procedure article 11.072. Although the trial court did not hold

a hearing before denying appellant’s article 11.072 writ application, the court issued

an “Order Denying Applicant’s Application for Writ of Habeas Corpus,” which

included “Findings of Fact and Conclusions of Law.” The trial court concluded that

appellant had not met her burden to show that the trial court abused its discretion or

violated her right to due process. Id. at *3.

      Appellant appealed that denial to this Court, asserting that the trial court

improperly modified her original conditions of community supervision, which had

been agreed to in the plea agreement with the State. Appellant claimed the condition

that she avoid contact with all children, including her own, violated her right to

substantive and procedural due process of law, interfered with her fundamental right



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to establish a home to raise her children, and was not rationally related to a legitimate

state interest. Id. at *2.

       We affirmed the trial court’s ruling, concluding appellant did not carry her

burden to show the trial court’s modification violated her substantive or procedural

due process rights. Id. at *3. Appellant then filed a petition for discretionary review.

Id. at *1. The Texas Court of Criminal Appeals agreed with appellant that the trial

court’s June 21, 2016 third modification of the terms of her probation deprived her

of a fundamental right—a parent’s right to care, custody, and management of her

own child—and that appellant was deprived of that right without being afforded

proper due process. In an opinion issued October 3, 2018, the court concluded that

before imposing such a modification, the trial court should have first afforded

appellant “proper procedural due process in the form of a hearing.” Id. at *6. The

court further noted that if “the trial court wishes to reimpose that same condition on

Appellant, it must proceed in accordance with this opinion.” The court of criminal

appeals reversed this Court’s judgment, vacated the trial court’s order denying

appellant habeas relief, and remanded the case to the trial court with instructions to

remove the modification that denied appellant access to her own children. Id. The

mandate issued November 5, 2018.

       When the trial court did not delete the condition, appellant filed a petition for

writ of mandamus with the court of criminal appeals on January 17, 2019. See In re

Fineberg, WR-89,425-01, 2019 WL 576596 (Tex. Crim. App. 2019) (not designated

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for publication). On February 11, 2019, while the writ was pending, appellant filed

a motion to recuse trial judge Tammy Kemp. On February 13, 2019, the court of

criminal appeals requested Judge Kemp file a response to appellant’s petition,

certifying what action, if any, had been taken with respect to the terms of appellant’s

community supervision since the issuance of the court’s October 2018 opinion. On

February 14, 2019, Judge Kemp declined to recuse herself and requested the

Presiding Judge of the First Administration Judicial Region assign a judge to hear

the motion to recuse.

      Judge Jim Jordan was assigned on February 22, 2019 to hear the motion to

recuse. On March 11, 2019, appellant filed an objection to assigned Judge Jordan

under section 74.053 of the Texas Government Code. Two days later, Presiding

Judge of the First Administrative Judicial Region Ray Wheless overruled appellant’s

objection to Judge Jordan’s assignment.

      Judge Jordan then granted appellant two continuances on the hearing on the

motion to recuse Judge Kemp, ultimately setting the hearing for May 31, 2019. On

May 28, 2019, appellant filed a motion to disqualify the Dallas County Criminal

District Attorney’s Office.

      Although the record does not show appellant filed a second objection or a

motion to recuse Judge Jordan, on May 31, 2019, Judge Jordan signed an order

declining “to recuse” himself and referring the motion to recuse to Acting Presiding



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Judge of the First Administrative Judicial Region who in turn denied appellant’s

“motion to recuse” Judge Jordan.

        On June 10, 2019, Judge Jordan signed an order denying appellant’s motion

and supplemental motion1 for recusal of Judge Kemp. Three days later, Judge Kemp

modified the conditions of community supervision to state that appellant was

required to avoid contact with all children, excluding her own biological children.

        Nearly a month later, Judge Kemp signed an order again modifying

appellant’s conditions of community supervision. The clerk’s record does not reflect

if a hearing was held. The July 9, 2019 modification provided:

        Do not have any form of contact, be it in person, by mail, telephone or
        any form of communication with any child 17 years of age or younger,
        including biological son, unless and until a chaperone approval
        program is completed for the biological son.


        The following day, Judge Kemp denied appellant’s motion to disqualify the

Dallas County District Attorney’s Office. Appellant filed a notice of appeal, seeking

review of the rulings on her (1) motion to disqualify the Dallas County District

Attorney’s Office, (2) motion to recuse the trial judge, and (3) objection to the

assigned judge. The notice of appeal was not forwarded to this Court for nearly seven

months. In the meantime, by postcard dated September 11, 2019, the Texas Court of




    1
      The clerk’s record on file with the Court does not contain any document entitled “Supplemental
Motion for Recusal of Trial Judge.” The first reference to any such document is in appellant’s June 7, 2019
“Memorandum of Law in Support of Recusal of 204th Judicial District Court Trial Judge.” It is again
referenced in the trial court’s order and in appellant’s July 10, 2019 notice of appeal.
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Criminal Appeals “denied without written order motion for leave to file [appellant’s]

original application for writ of mandamus.”

       After the clerk’s record was filed in this Court, we notified the parties we had

concerns about our jurisdiction. Specifically, we noted it appeared that the orders

appellant sought to appeal were not final appealable orders. We requested

jurisdictional letter briefs. In appellant’s letter brief, she argued:

              An order denying a motion to recuse “may be reviewed for an
       abuse of discretion on appeal from the final judgment.” Tex. R. Civ. P.
       18a(j). Texas courts interpret a final judgment as one that disposes of
       all issues and parties in a case. North East Independent School Dist. v.
       Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).


She contends that once her motions were denied, “all issues between the parties, the

State of Texas and Lisa Ann Fineberg, were disposed.” Alternatively, appellant

asked the Court to treat the appeal as a petition for a writ of mandamus.

       The State argues we lack jurisdiction because none of the three orders is a

final judgment or an otherwise appealable interlocutory order. See Apolinar v. State,

820 S.W.2d 792, 794 (Tex. Crim. App. 1991) (intermediate appellate courts have no

jurisdiction to review interlocutory orders absent express authority); Wright v. State,

969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.). To the extent appellant

seeks to appeal the denial of her post-conviction motion to disqualify the Dallas

County District Attorney’s Office, the State cites Kearny v. State, No. 05-07-01155-

CR, 2007 WL 2897755, at *1 (Tex. App.—Dallas Oct. 5, 2007, no pet.) (mem. op.,

not designated for publication) (dismissing appeal of order granting State’s motion
                                           –7–
to disqualify counsel for want of jurisdiction); see also Wright, 969 S.W.2d at 589

(setting out types of appealable interlocutory orders). With respect to the denial of

her motion to recuse the trial judge and objection to the assigned judge, the State

cites civil procedure rule 18a; Arnold v. State, No. 10-18-00055-CR, 2018 WL

1004880, at *1 (Tex. App.—Waco Feb. 21, 2018, pet. ref’d) (mem. op., not

designated for publication) (dismissing appeal of order denying motion to recuse and

disqualify for want of jurisdiction); and Gore v. Gore, No. 05-13-01025-CV, 2014

WL 1018650, at *1 (Tex. App.—Dallas Mar. 17, 2014, no pet.) (mem. op., not

designated for publication) (dismissing appeal of order denying motion to disqualify

for want of jurisdiction).2

         The procedures for recusal of judges are set out in the rules of civil procedure

and apply to criminal cases. TEX. R. CIV. P. 18a; De Leon v. Aguilar, 127 S.W.3d 1,

5 (Tex. Crim. App. 2004) (orig. proceeding); Arnold v. State, 853 S.W.2d 543, 544

(Tex. Crim. App. 1993). An order denying a motion to recuse is reviewable only on

appeal from a final judgment. TEX. R. CIV. P. 18a(j)(1)(A). Absent a timely appeal

of a final conviction or one that disposes of all issues and parties in a case, the

appellate court lacks jurisdiction over a trial court’s stand-alone order denying a

motion to recuse. Wright, 969 S.W.2d at 589; Earbin v. State, No. 05-17-01402-CR,

2018 WL 446442, at *1 (Tex. App.—Dallas 2018, no pet.) (mem. op.) (not



   2
       Appellant objected to assigned Judge Jordan under section 74.053 of the Texas Government Code.
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designated for publication) (citing Green v. State, 374 S.W.3d 434, 445 (Tex. Crim.

App. 2012)). Likewise, an appeal from an order denying a motion to disqualify

counsel is an interlocutory appeal; absent a judgment of conviction or other

appealable order, we lack jurisdiction to review the appeal. Wright, 969 S.W.2d at

589; Summers v. State, No. 05-07-01154-CR, 2007 WL 2834530, at *1 (Tex. App.—

Dallas 2007, no pet.) (mem. op.) (per curiam) (not designated for publication).

      Section 74.053(b) of the Texas Government Code provides that once a party

files a timely objection to an assigned judge, “the judge shall not hear the case.” TEX.

GOV'T CODE ANN. § 74.053(b); see Lewis v. Leftwich, 775 S.W.2d 848, 849–50 (Tex.

App.—Dallas 1989, orig. proceeding). Upon the filing of a timely objection to an

assigned judge, the judge is automatically disqualified as a matter of law, even if the

judge is unaware of the objection. In re Carnera, 05–16-00055–CV, 2016 WL

323654, at *1 (Tex. App.—Dallas Jan. 27, 2016, orig. proceeding). However, section

74.053(d) does not apply to criminal cases. Lanford v. Fourteenth Court of Appeals,

847 S.W.2d 581, 587 (Tex. Crim. App. 1993).

      We conclude the denials of appellant’s motions are interlocutory orders. The

2016 convictions finding appellant guilty and placing her on community supervision

were final but she did not timely appeal. And there is no legislative authority for

entertaining a direct appeal from an order modifying the conditions of community

supervision. Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006); Basaldua



                                          –9–
v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977). Because there is no final judgment

over which we have jurisdiction, we cannot review the denial of her motions.

      Appellant alternatively requests that we treat her notice of appeal as a petition

for writ of mandamus. Her two-page notice of appeal, however, does not meet the

requirements of rule 52. See TEX. R. APP. P. 52.3.

      We dismiss appellant’s appeal for want of jurisdiction. To the extent she asks

us to treat her filing as a petition for writ of mandamus, we deny her request without

prejudice to refiling a proper petition that complies with rule 52.




                                            /Robert D. Burns, III/
                                            ROBERT D. BURNS, III
                                            CHIEF JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
200163F.U05




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                                  S
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

LISA ANN FINEBERG, Appellant                 On Appeal from the 204th Judicial
                                             District Court, Dallas County, Texas
No. 05-20-00163-CR         V.                Trial Court Cause No. F16-00021-Q.
                                             Opinion delivered by Chief Justice
THE STATE OF TEXAS, Appellee                 Burns. Justices Myers and Carlyle
                                             participating.

       Based on the Court’s opinion of this date, we DISMISS this appeal for want
of jurisdiction.


Judgment entered May 4, 2020




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