Ex parte Martell

• Decision Date: 14 June 1995
• Docket Number: No. 04-94-00410-CR,04-94-00410-CR
• Parties: Ex parte Charles Eugene MARTELL, Appellant.
• Court: Texas Court of Appeals

Page 754

901 S.W.2d 754

Ex parte Charles Eugene MARTELL, Appellant.

No. 04-94-00410-CR.

Court of Appeals of Texas,

San Antonio.

June 14, 1995.

Rehearing Overruled July 5, 1995.

George Scharmen, San Antonio, for appellant.

Anton Hackebiel, Dist. Atty., Uvalde, for appellee.

Before STONE, GREEN and DUNCAN, JJ.

PER CURIAM.

The trial court convicted appellant of felony driving while intoxicated upon his plea of guilty. The court assessed punishment at four years confinement, probated for four years, in accordance with a plea bargain agreement. Appellant later filed a petition for writ of habeas corpus, alleging that he received ineffective assistance of counsel at trial and that the evidence is insufficient to support his conviction. This writ was not made returnable to the court of criminal appeals under article 11.07 because appellant's conviction is not final. See Ex parte Brown, 662 S.W.2d 3, 4 (Tex.Crim.App.1983) (conviction is not final while accused is serving probated felony sentence); Ex parte Payne, 618 S.W.2d 380, 381 (Tex.Crim.App.1981) (same). Thus, he properly pursued habeas relief in the court of conviction. See Ex parte Twyman, 716 S.W.2d 951, 952 (Tex.Crim.App.1986).

There is no appeal from the refusal to issue or grant a writ of habeas corpus. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App.1991); Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983). However, "[w]hen a hearing is held on the merits of an applicant's claim and the court subsequently rules on the merits of that claim, the losing party may appeal." Ex parte Hargett, 819 S.W.2d at 868.

The trial court in the present case did not grant appellant's application for writ of habeas corpus and did not hold a hearing or purport to rule on the merits of appellant's claims. The order from which appellant appeals states that the application for writ of habeas corpus is denied and that the court finds the application frivolous. This is a determination that there is not even sufficient cause to issue the writ, which must be distinguished from a determination that there is not sufficient cause to grant the relief requested. See Ex parte Hargett, 819 S.W.2d at 868. Appeal lies only from the latter.

At oral argument, counsel for appellant expressed some confusion regarding when an appeal may be taken following a trial court's ruling on a petition for habeas corpus. Counsel cited Rabago v. State, No. 04-93-00473-CR (Tex.App.--San Antonio November 30, 1993, no pet.), and Sparks v. State, No. 04-94-00171-CR (Tex.App.--San Antonio September 21, 1994, pet. ref'd), as examples of cases that he asserts this court has treated inconsistently.

Sparks is indistinguishable from the present case in that the trial court refused to hold a hearing or rule on the merits, but rather denied appellant's application for writ of habeas corpus as frivolous. We dismissed the appeal for lack of jurisdiction and the court of criminal appeals refused appellant's petition for discretionary review.

Rabago presents a somewhat confused appeal. Appellant in that case filed a motion to reduce bond, which the trial court denied. Rather than appealing that denial, see Primrose v. State, 725 S.W.2d 254, 256 n. 3 (Tex.Crim.App.1987); Clark v. Barr, 827 S.W.2d 556, 557 (Tex.App.--Houston [1st Dist.] 1992, orig. proceeding), appellant filed a petition for writ of habeas corpus requesting that the trial court set reasonable bond. Appellant attached the motion to reduce bond and the statement of facts from the hearing on that motion as exhibits to the petition for writ of habeas corpus. All of these documents were presented to the judge who originally ruled on the motion to reduce bond. That judge then denied the application for writ of habeas corpus, referring back in a note to the ruling on the bond reduction.

The application for writ of habeas corpus in Rabago was wholly dependent on the proof offered on the motion to reduce bond. Indeed, in his sole point of error before this court, appellant complained of the trial court's denial of the bond reduction. In the unique circumstances of that case, the ruling on the merits of the motion to reduce was reflected in the ruling on the application for writ of habeas corpus. Thus, this court apparently determined that appellant had made a sufficient showing that the trial court actually heard the merits of his application and denied the requested relief.

Rabago and Sparks do not show that this court has treated appeals from applications for writs of habeas corpus inconsistently. Rabago is distinguishable on the facts from the present case. Sparks, on the other hand, is directly on point. As in Sparks, appellant has failed to demonstrate that he has properly invoked the jurisdiction of this court.

Counsel in the present case also asserted at oral argument that appeal should lie in the present case because the trial court ruled on the merits and made findings of fact and conclusions of law thereon. These assertions are not supported by the record. The trial court recited in its order that appellant was represented by retained counsel, was convicted upon his plea of guilty, and is legally serving a probated sentence. The court then concluded that there were no matters of fact to be determined and that the application should be denied as frivolous. As noted above, this is a determination that the application did not even merit granting the writ or a hearing thereon. No appeal lies from this determination. See Ex parte Hargett, 819 S.W.2d at 868.

Further, the merits of appellant's petition revolve around his assertions that (1) his trial counsel was ineffective for failing to discover that the DWI offense occurred on a private road and (2) the evidence is insufficient to support his guilty plea. Nowhere in the trial court's order does the court even mention ineffective assistance of counsel, the "private property" defense, or the sufficiency of the evidence. We simply cannot construe the order as determining the merits of the application.

Counsel next argued that the trial court must have ruled on the merits because the trial court ordered that the record be transmitted to the court of appeals. Actually, the court ordered that appellant's "Application for Writ of Habeas Corpus" be transmitted to this court. This action does not constitute a ruling on the merits of the application or even insinuate that the court ruled on the merits. At most, it indicates some confusion as to the procedure to be followed in a post-conviction writ that is not addressed to the court of criminal appeals. We note that the trial court appears to have followed the procedure outlined in article 11.07, which governs post-conviction writs of habeas corpus in final felony convictions. The court determined that there were no issues of fact to be determined, see TEX.CODE CRIM.PROC.ANN. art. 11.07, § 2(c) (Vernon Supp.1995) (court shall determine "whether there are controverted,...