Ex parte Oyedo

• Citation: 939 S.W.2d 785
• Decision Date: 13 February 1997
• Docket Number: No. 14-96-00789-CR,14-96-00789-CR
• Parties: Ex parte Al OYEDO aka Eduardo Corredor. (14th Dist.)
• Court: Court of Appeals of Texas

Page 785

939 S.W.2d 785

Ex parte Al OYEDO aka Eduardo Corredor.

No. 14-96-00789-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 13, 1997.

David Cunningham, Houston, for appellant.

Calvin A. Hartman, Houston, for appellee.

Before YATES, HUDSON and FOWLER, JJ.

OPINION

YATES, Justice.

Al Oyedo aka Eduardo Corredor filed an application for writ of habeas corpus in the trial court requesting that his 1986 misdemeanor conviction for price tag switching be set aside. In the writ, Oyedo alleged he did not affirmatively waive his right to a jury trial when he pled no contest to the misdemeanor. The trial court denied his writ, and Oyedo now appeals the trial court's denial. Because we conclude Oyedo is not "confined," we dismiss his appeal for want of jurisdiction.

Oyedo filed his application for writ of habeas corpus in the trial court under the Code of Criminal Procedure. TEX.CODE CRIM.PROC.ANN. art. 11.01, 11.05, 11.09, 11.21 (Vernon 1977 & Supp.1997). He did not assert his right to habeas corpus relief under the Texas Constitution. In his writ, Oyedo claimed he did not waive his right to a jury. His writ indicates he "does not have a future sentence to serve." After a hearing, the trial court denied the writ, finding that Oyedo was advised by his counsel of his right to a jury trial and that his waiver was expressly stated in the judgment of his misdemeanor conviction.

Article 11.07 requires the court to determine if any "unresolved facts material to the legality of the applicant's confinement" exist before granting an order to hear the petition for habeas corpus. TEX.CODE CRIM.PROC.ANN. art. 11.07 § 3(c), (d) (Vernon Supp.1997). Therefore, article 11.07 of the Code of Criminal Procedure applies only when the applicant for habeas corpus is "confined." TEX.CODE CRIM.PROC.ANN. art. 11.07 (Vernon Supp.1997); Rodriguez v. Court of Appeals, 769 S.W.2d 554, 557 (Tex.Crim.App.1989); Ex Parte Renier, 734 S.W.2d 349, 351 (Tex.Crim.App.1987). But see Ex Parte Hargett, 819 S.W.2d 866, 867 (Tex.Crim.App.1991) ("Even though an applicant may not be confined, TEX.CONST., Art. V, § 8 provides an avenue by which collateral legal consequences of a conviction may be challenged.").

However, article 11.07 applies only "in a felony case." TEX.CODE CRIM.PROC.ANN. art. 11.07; Ex Parte Renier, 734 S.W.2d at 351. The underlying conviction here was a misdemeanor; therefore, article 11.09 applies instead. It states:

If a person is confined on a charge of misdemeanor, he may apply to the county judge of the county in which the misdemeanor is charged to have been committed, or if there be no county judge in said county, then to the county judge whose residence is nearest to the courthouse of the county in which the applicant is held in custody.

TEX.CODE CRIM.PROC.ANN. art. 11.09 (Vernon 1977) (emphasis added). While the case law set out above has established confinement as a requirement for a writ brought pursuant to article 11.07, our research has not uncovered a comparable decision holding that article 11.09 requires the applicant to be "confined" before habeas relief may be granted. Nevertheless, a plain reading of the provision suggests that one must be "confined on a charge of misdemeanor" before an application for habeas corpus may be made. Thus, just as with 11.07, we hold an application for habeas corpus relief will not lie under article 11.09 unless the applicant is "confined" pursuant to a commitment for a misdemeanor conviction. Cf. Ex Parte Renier, 734 S.W.2d at 353.

Having determined that relief cannot be granted under article 11.09 unless Oyedo was confined, we conclude Oyedo was not confined. T...