Ex parte Clore, 69180
| Decision Date | 08 May 1985 |
| Docket Number | No. 69180,69180 |
| Citation | 690 S.W.2d 899 |
| Parties | Ex parte Billy Ray CLORE. |
| Court | Texas Court of Criminal Appeals |
This is an original application for writ of habeas corpus, See Art. V, Sec. 5, Texas Constitution.
Applicant was found guilty by a jury for the offense of attempted murder. On July 18, 1983 the jury assessed punishment at three years confinement in the Texas Department of Corrections and recommended that the sentence be probated. The judge reset the cause for thirty-one days, until August 12, 1983, to assess punishment. On August 12, 1983, judgment and sentence were signed and entered of record placing applicant on probation. Among the conditions of probation assessed upon the applicant was incarceration in the Harris County jail for a period of thirty days. Applicant contends the trial judge had no authority to impose, as a condition of his probation pursuant to Art. 42.12, V.A.C.C.P., incarceration in the county jail for a period of thirty days. Because we find that applicant has intentionally by-passed orderly appellate procedures, we will dismiss the writ of habeas corpus without reaching the merits of applicant's contention.
In his application for writ of habeas corpus applicant alleged he was "sentenced" on July 18, 1983, and that time for filing notice of appeal had passed by August 12, when the judge assessed the "offending" condition of probation. Applicant is incorrect for two reasons. First, the record clearly indicates that the sentence was not pronounced until August 12, which is the date judgment and sentence were signed and entered; thus applicant had at least fifteen days from August 12 to file notice of appeal. Art. 44.08, V.A.C.C.P. He instead immediately on August 12, filed this original application for writ of habeas corpus.
Second, assuming arguendo that applicant was "sentenced" on July 18, only twenty-seven days had elapsed by the August 12th hearing when the condition of probation was imposed. Thus, if applicant found the conditions to be improper, his remedy at that time was to file a motion for new trial and if such was overruled, he would give timely notice of appeal. See Art. 40.01, et seq....
To continue reading
Request your trial
-
City of El Paso v. Alvarez
...habeas corpus. Habeas corpus is an extraordinary remedy that should not be used as a substitute for an appeal. Ex parte Clore, 690 S.W.2d 899, 900 (Tex.Crim.App.1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Thus, an application for pretrial writ of habeas corpus should no......
-
Ex parte Culver
...to this rule. Habeas corpus is an extraordinary remedy that should not be used as a substitute for an appeal. Ex parte Clore, 690 S.W.2d 899, 900 (Tex.Crim.App.1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Thus, an application for pretrial writ of habeas corpus should not......
-
Ex parte Matthews
...remedy that should not be entertained where there is an adequate remedy by appeal after final judgment. Ex parte Clore, 690 S.W.2d 899, 900 (Tex.Crim.App.1985); Ex parte Groves, 571 S.W.2d 888, 890 (Tex.Crim.App.1978). Thus, a defendant may not use pretrial habeas corpus to assert, e.g., hi......
-
Ex parte Gregerman
...granted when there is an adequate remedy by appeal after final judgment; it is not a substitute for an appeal. See Ex parte Clore, 690 S.W.2d 899, 900 (Tex.Crim.App.1985). A double jeopardy claim, nevertheless, may be brought by a motion for writ of habeas corpus. See Ex parte Gonzales, 667......