Ex parte Spaulding, 66005
Decision Date | 11 March 1981 |
Docket Number | No. 66005,66005 |
Citation | 612 S.W.2d 509 |
Parties | Ex parte William E. SPAULDING, III, Appellant. |
Court | Texas Court of Criminal Appeals |
Petitioner seeks habeas corpus relief from the trial court's order refusing to set bond pending appeal. On August 31, 1979, petitioner was found guilty by a jury of aggravated rape and punishment was assessed at fifteen years. In denying bail on appeal, the trial court entered an order which recites that based upon the evidence presented during the trial of this case, there is good cause to believe that the petitioner would not appear when his conviction becomes final. 1
Art. 44.04(g), V.A.C.C.P., provides as follows:
"The right of appeal to the Court of Criminal Appeals of this state is expressly accorded the defendant for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals."
In Ex Parte Fowler, Tex.Cr.App., 573 S.W.2d 241, it was held that in view of the specific right of appeal as provided for in Art. 44.04(g), supra, matters relating to the issue of bail on appeal would no longer be considered by way of habeas corpus proceedings. In Fowler, the defendant's request that bond pending appeal be reduced was denied by the trial court without a hearing being held. Fowler then filed an application for writ of habeas corpus complaining of the trial court's refusal to reduce bail. This Court refused to consider the application and directed the defendant to his appellate rights as provided for in Art. 44.04(g), supra.
This Court's holding in Fowler would thus prevent a review of the bail matter which petitioner now seeks to present by way of his application for writ of habeas corpus. The holding of Fowler recently came under criticism in a concurring opinion in Ex Parte Byers, 612 S.W.2d 534 (No. 65,021, del. 10/22/80). In Byers, the petitioner filed an original application for habeas corpus in which it was maintained that the trial court had erroneously denied bond pending appeal. The Court stated that the holding in Fowler prevented the use of habeas corpus to review the petitioner's contention. However, relief was granted after the application was treated as one for a writ of mandamus rather than habeas corpus. Mandamus was appropriate in that the trial court had violated its non-discretionary duty to at least consider the petitioner's application for bail.
The concurring opinion in Byers stated as follows with regard to Fowler's prohibition on the use of habeas corpus to review bail questions (footnote omitted):
We now adopt the concurring opinion in Byers and overrule Fowler to the extent that it holds that this Court will not review matters pertaining to bail pending appeal by habeas corpus. Such matters may be brought to this Court by appeal under Art. 44.04(g), supra, Art. 44.34, supra, or by original habeas corpus application under this Court's constitutional authority to consider applications for writs of habeas corpus which present issues concerning bail pending appeal. See Art. 5, Sec. 5, Texas Constitution.
In the instant case, the record fails to reflect that notice of appeal was given from the trial court's order denying bail. We will therefore construe petitioner's application as an original habeas corpus action under this Court's constitutional authority to review matters pertaining to...
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