                            Fourth Court of Appeals
                                   San Antonio, Texas
                                           May 8, 2019

Nos. 04-18-00764-CR, 04-18-00765-CR, 04-18-00774-CR, 04-18-00775-CR, 04-18-00777-CR,
  04-18-00778-CR, 04-18-00779-CR, 04-18-00780-CR, 04-18-00781-CR, 04-18-00782-CR,
  04-18-00783-CR, 04-18-00784-CR, 04-18-00785-CR, 04-18-00786-CR, 04-18-00787-CR,
  04-18-00788-CR, 04-18-00789-CR, 04-18-00790-CR, 04-18-00791-CR, 04-18-00792-CR,
                          04-18-00794-CR, & 04-18-00795-CR

                                      The STATE of Texas,
                                           Appellant

                                                 v.

  Mark Anthony GONZALEZ, Agustin Perez, Jr., Gabriel Rene Perez, Jeremias Aguilar, Jr.,
  Martin M. Rios, Jr., Steven Negrete, Fernando Jefte Mata, Eloy Canales Romo, Francisco
  Antonio Rodriguez, Raymond Ryan Robinson, Winston Robert Modisette, Courtney Marie
                              Seilhammer, and Ahmed Mamuth
                                         Appellees

                        From the County Court, Kinney County, Texas
    Trial Court Nos. 10041CR, 10056CR, 10122CR, 10134CR, 9711CR, 9712CR, 9892CR,
     10123CR, 10054CR, 10138CR, 10187CR, 9964CR, 10185CR, 10047CR, 10074CR,
           10115CR, 10116CR, 10117CR, 10118CR, 10125CR, 10195CR, 10196CR
                        Honorable Spencer W. Brown, Judge Presiding


                                          ORDER
       On October 22, 2018, the State filed a notice of appeal seeking to appeal an order entitled
“Order on Motion to Recuse and Jeopardy Motion for Dismissal” entered in each of the
underlying causes. The notice of appeal stated it was being filed pursuant to articles 44.01(a)(1)
and (4) of the Texas Code of Criminal Procedure which authorizes an appeal by the state of an
order dismissing an indictment, information, or complaint or an order sustaining a claim of
former jeopardy. TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(1), (4). The order in each of the
underlying causes stated, “It is Ordered, Adjudged and Decreed that the Motion to Recusal is
DENIED and the verbal Jeopardy Motion is GRANTED.” Therefore, because the order
appeared to grant a jeopardy motion for dismissal, this court appeared to have jurisdiction to
consider the appeals.

        In an order dated December 21, 2018, this court noted its interpretation of the trial court’s
order, stating, “the State also seeks to appeal the dismissal of the underlying causes through an
order sustaining a claim of jeopardy.” The State’s brief contained language consistent with this
court’s interpretation of the trial court’s order. For example, the State’s brief stated, “a trial
judge is without jurisdiction to dismiss a criminal case as a sanction,” and “the law and the
record do not support the sanctions and dismissal orders entered in this case.”

        Kinney County’s reply brief, however, questioned this court’s jurisdiction to consider
these appeals, asserting “While this Court has limited jurisdiction to hear this matter as a petition
for mandamus relief, the Court does not have jurisdiction to hear this matter on appeal under the
cited provisions of the Code of Criminal Procedure as there has not been a final order issued in
the currently pending criminal cases.” The brief further asserts the order the State seeks to
appeal “does not dismiss the pending criminal case in any of the above captioned cases.”
Although the brief concedes “there may be ambiguity as to what Judge Brown meant in his
written order . . . no order dismissing the case on a claim of jeopardy has issued.”

        Because it appears the underlying causes have not been dismissed, the State is
ORDERED to show cause in writing no later than two weeks from the date of this order why
these appeals should not be dismissed for lack of jurisdiction. See TEX. R. CIV. P. 18a(j)(1)(A)
(providing order denying motion to recuse may be reviewed only on appeal from the final
judgment); Muhammad v. State, No. 08-18-00125-CR, 2018 WL 3751742, at *1 (Tex. App.—El
Paso Aug. 8, 2018, no pet.) (quoting TEX. R. CIV. P. 18a(j)(2) which provides an order ‘denying a
motion to disqualify may be reviewed by mandamus and may be appealed in accordance with
other law’ but stating no ‘other law’ allows an interlocutory appeal of an order denying a motion
to disqualify in a criminal case) (not designated for publication); Hranicky v. State, No. 01-11-
00557-CR, 2013 WL 1804495, at *1 (Tex. App.—Houston [1st Dist.] Apr. 30, 2013, pet. ref’d)
(rejecting argument that court had jurisdiction to consider appeal that involved the denial of a
motion to disqualify a trial judge on due process grounds) (not designated for publication).



                                                      _________________________________
                                                      Sandee Bryan Marion, Chief Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 8th day of May, 2019.



                                                      ___________________________________
                                                      KEITH E. HOTTLE,
                                                      Clerk of Court
