                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
 JESUS MIRELES,                                                    No. 08-18-00139-CR
                                                 §
                               Appellant,                            Appeal from the
                                                 §
 v.                                                                 384th District Court
                                                 §
 THE STATE OF TEXAS,                                             of El Paso County, Texas
                                                 §
                               Appellee.                           (TC# 20170D04852)


                                 MEMORANDUM OPINION

       This appeal is before the Court on its own motion to determine whether it should be

dismissed for want of jurisdiction. We dismiss the appeal.

       Appellant, Jesus Mireles, filed a notice of appeal from two interlocutory orders: (1) an

order denying Appellant’s motion to dismiss for violation of the Double Jeopardy prohibition

against multiple punishments, and (2) an order denying Appellant’s motion to require the State to

elect to prosecute him on either Count I or Count II, but not both. The Clerk of the Court sent

notice to Appellant of the Court’s intent to dismiss his appeal for lack of jurisdiction and asked

him to file any response within ten days. Appellant did not file a response.

       This Court’s jurisdiction is derived from the Texas Constitution which provides that the

courts of appeals have appellate jurisdiction “under such restrictions and regulations as may be

prescribed by law.” TEX.CONST. art. V, § 6(a). Consequently, a party may appeal only that which
the Legislature has authorized. Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992).

Article 44.02 provides that a defendant in any criminal action has the right of appeal under the

rules hereinafter prescribed. TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2018). This statutory

right of appeal has been interpreted as allowing appeal from a final judgment of conviction. See

State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990); Ex parte Culver, 932 S.W.2d

207, 210 (Tex.App.--El Paso 1996, pet. ref’d). The courts of appeals 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); Culver, 932 S.W.2d at 210. No statute or

rule authorizes an interlocutory appeal from an order denying a motion to dismiss in a criminal

case or a motion to require the State to elect.

        It is well established that a defendant may appeal from the denial of a pretrial application

for writ of habeas corpus alleging double jeopardy. See Ex parte Rathmell, 717 S.W.2d 33, 34

(Tex.Crim.App. 1986); Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App. 1982). A motion to

dismiss a prosecution on double jeopardy grounds and a motion to require the State to elect which

count it will prosecute are not the equivalent of a pretrial writ of habeas corpus. See Apolinar, 820

S.W.2d at 794 (prohibiting appellate courts from considering a special plea as the equivalent of a

pretrial writ of habeas corpus). We conclude that we lack jurisdiction of the instant appeal. See

Murrile v. State, No. 03-11-00190-CR, 2011 WL 3891492, at *1 (Tex.App.--Austin Aug. 31, 2011,

no pet.)(mem. op., not designated for publication)(holding that court of appeals lacked jurisdiction

of interlocutory appeal of order denying defendant’s motion to dismiss based on double jeopardy

grounds).1 The appeal is dismissed for lack of jurisdiction.



1
  The Austin Court of Appeals subsequently heard an appeal from the denial of Murrile’s pretrial application for
writ of habeas corpus based on double jeopardy grounds. Ex parte Murrile, No. 03-11-00830-CR, 2012 WL
1810202 (Tex.App.--Austin May 16, 2012, no pet.)(mem. op., not designated for publication).

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                                            GINA M. PALAFOX, Justice
September 5, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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