Ex parte Shumake

• Decision Date: 25 September 1997
• Docket Number: No. 03-97-00014-CR,03-97-00014-CR
• Citation: 953 S.W.2d 842
• Parties: Ex parte Rueben SHUMAKE, Appellant.
• Court: Texas Court of Appeals

Page 842

953 S.W.2d 842

Ex parte Rueben SHUMAKE, Appellant.

No. 03-97-00014-CR.

Court of Appeals of Texas Austin.

Sept. 25, 1997.

Terry Keel, The Laws Office of Balagia and Keel, Pflugerville, Terrence W. Kirk, Law Office of Joseph A. Turner, Austin, for Appellant.

Ronald Earle, Dist. Atty., C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for State.

Before CARROLL, C.J., and JONES and ONION, ^* JJ.

ONION, Justice (Retired).

This is a purported appeal from a post-indictment pretrial order of the trial court raising the bail in a murder case. Appellant contends that the order was entered pursuant to article 17.09 section 3 of the Code of Criminal Procedure ¹ and that he is entitled to appeal under Rule 44(a) of the Rules of Appellate Procedure. We will dismiss the appeal for want of jurisdiction.

Background

Appellant was charged before a magistrate with the offense of manslaughter and made the $20,000 appearance bond set. Subsequently, the Travis County grand jury returned an indictment elevating the offense to murder. The State filed a motion in the district court requesting that the court increase the amount of bail to $250,000. The motion alleged, inter alia, that appellant had a lengthy juvenile record beginning at age twelve, had been earlier charged with an assault, failed to appear in court and had his bond forfeited, had been released on another bond in the assault case the day of the instant murder, was the suspect in three separate aggravated assaults, and was a flight risk and a danger to the community. There was no written response or answer to the State's motion.

In January 1997, the district court conducted two hearings on the motion. Thereafter, the court set the amount of bail at $100,000, granting in part the State's motion. Appellant gave notice of appeal expressly stating that "no writ of habeas corpus" was necessary and called attention to Rule 44(a).

Points of Error

Appellant advances two points of error claiming that the trial court erred in relying on (1) appellant's juvenile adjudications and (2) the murder indictment ² to increase the amount of bail. He urges that the trial court did not look "at the strength of the evidence supporting the charge." Appellant's complaints are directed at evidentiary rulings and concerns. There are no express appellate claims that the bail set was excessive, unreasonable, or that he was unable to make bail in the amount set. Again, appellant notes that this is not an appeal in a habeas corpus proceeding. ³

A Question of Jurisdiction

We are confronted at the outset with a question of this Court's jurisdiction. Does appellant, by virtue of Rule 44(a), have the right to appeal this pretrial interlocutory order under the circumstances described? ⁴

The Right of Appeal

The United States Constitution does not require a state to provide appellate courts or a right to appellate review of criminal convictions. See Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); McKane v. Durston, 153 U.S. 684, 687-88, 14 S.Ct. 913, 914-15, 38 L.Ed. 867 (1894); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992); Willis v. State, 856 S.W.2d 851, 852 (Tex.App.--Fort Worth 1993, no pet.). A state may limit or even deny the right to appeal a criminal conviction. There are no due process rights to an appeal. Rosales v. State, 748 S.W.2d 451, 454 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2917, 101 L.Ed.2d 949 (1988); Kahmann v. State, 873 S.W.2d 785, 787 (Tex.App.--Austin 1994, pet. ref'd). It is a fundamental principle of due process and equal protection, however, that once avenues of appellate review are established, they must be kept free of unreasoned distinctions that can only impede open and equal access to the courts. Rosales, 748 S.W.2d at 454, 21 Tex. Jur.3d Criminal Law, § 1606 at 402-03 (1982). There is nothing in the Texas Constitution which guarantees the right to appeal a criminal conviction; that right is only provided by the legislature. Phynes, 828 S.W.2d at 2. "The Texas Constitution provides that appellate jurisdiction is subject to such regulations as may be provided in the Constitution or prescribed by law. Thus, appeals are within the control of the legislature, and an appeal is a privilege, dependent on statute." 21 Tex. Jur.3d; Criminal Law, § 1606 at 403 (1982); see also Watson v. State, 924 S.W.2d 711, 713 (Tex.Crim.App.1996); Lyon v. State, 872 S.W.2d 732, 734 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994); Marin v. State, 851 S.W.2d 275, 277 (Tex.Crim.App.1993); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App.1992). A statutorily granted right of appeal must be explained in plain and unambiguous language. The statute may not be liberally interpreted to create that right where it does not exist. Pitts v. State, 918 S.W.2d 4, 5 (Tex.App.--Houston [14th Dist.] 1995, no pet.). Article 44.02 of the Texas Code of Criminal Procedure states a defendant's general right of appeal while article 44.01 contains the State's limited right of appeal. See Tex.Code Crim. Proc. Ann. arts. 44.01 (West Supp.1997) and 44.02 (West 1979).

The jurisdiction of a court of appeals is established by various constitutional and statutory provisions, but that jurisdiction is not unlimited or absolute. Ex parte Lewis, 663 S.W.2d 153, 154 (Tex.App.--Amarillo 1983, no pet.). A court of appeals is required to determine its own jurisdiction in each case. Id. Generally, we have jurisdiction in criminal cases only where there has been a judgment of conviction. See McKown v. State, 915 S.W.2d 160, 161 (Tex.App.--Fort Worth 1996, no pet.) (citing Workman v. State, 170 Tex.Crim. 621, 343 S.W.2d 446, 447 (1961)). A court of appeals does not have jurisdiction to review interlocutory orders unless that jurisdiction has been expressly granted by statute. See Ex parte Apolinar, 820 S.W.2d 792, 794 (Tex.Crim.App.1991); Emerson v. Borland, 838 S.W.2d 951, 952 (Tex.App.--Austin 1992, no writ).

Right to Appeal Under Rule 44(a)

In the instant case appellant asserts the interlocutory order raising the amount of bail is appealable. He acknowledges that the hearing in question was conducted pursuant to article 17.09, section 3 of the Texas Code of Criminal Procedure. Sections 2 and 3 of that statute provide:

Sec. 2 When a defendant has once given bail for his appearance in answer to a criminal charge, he shall not be required to give another bond in the course of the same criminal action except as herein provided.

Sec. 3 Provided that whenever during the course of the action, the judge or magistrate in whose court such action is pending finds that the bond is defective, excessive or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause, such judge or magistrate may either in term-time or in vacation, order the accused to be re-arrested, and required the accused to give another bond in such amount as the judge or magistrate may deem proper. When such bond is so given and approved, the defendant shall be released from custody.

Under article 17.09, section 3, the judge in whose court the case is pending at any particular stage of the criminal action may modify bail for certain designated reasons and for "other good and sufficient cause." The statute does not address the procedure that is to be used. See Dix, § 16.52 at 718. It does grant a great deal of discretion to the judge or magistrate in raising or lowering bail in a criminal action which is a practical consideration where there are ever-changing conditions.

Appellant does not claim that article 17.09 supports his right of appeal of the interlocutory order but cites and relies upon Rule 44(a) which provides in pertinent part:

(a) The Record. In habeas corpus or bail proceedings when written notice of appeal from a judgment or an order is filed, the transcript and, if requested by the applicant, a statement of facts, shall be prepared and certified by the clerk of the trial court and, within fifteen days after the notice of appeal is filed, sent to appellate court ...

Tex.R.App. P. 44(a) (emphasis added). ⁵

A cursory examination of this rule enacted by the Court of Criminal Appeals pursuant to its rule-making authority shows that it pertains to the appellate record in the established and permissible avenues of appeal in habeas corpus proceedings and bail proceedings, e.g., proceedings under Article I, sections 11 and 11a, Texas Constitution and article 44.04 (bail pending appeal). Tex.Code Crim. Proc. Ann. art. 44.04 (West Supp.1997). Rule 44(a) appears to be a limited appellate procedural rule as it addresses only the timetables for the appellate record and submission before the appellate court. It does not even address the filing deadline for the notice of appeal. See Ex parte Pena, 940 S.W.2d 260, 261 (Tex.App.--San Antonio 1997, no pet.).

The rule, not an enactment of the Legislature, does not itself purport to establish in plain and unambiguous language any new and independent right to appeal an interlocutory order in a criminal case merely because the order pertains to bail.

Appellant in relying on Rule 44(a) cites Primrose v. State, 725 S.W.2d 254, 256 n. 3 (Tex.Crim.App.1987). Primrose involved a purported appeal to the Court of Criminal Appeals from a pretrial order denying bail to a defendant in a capital murder. Subsequent to the return of the indictment, the trial court, following a hearing, granted the State's motion to hold the defendant without bail. The defendant appealed, claiming that the proof was not evident that the death penalty would be imposed and that he should not have been denied bail. The Court of Criminal Appeals denied that it had jurisdiction of the appeal, observing that bail was denied pursuant to Article I, section 11 of the Texas Constitution, which contained no proviso, as does Article I, section 11a, expressly according the right of appeal to ...