Fowler v. Hooey, 58639
Decision Date | 15 November 1978 |
Docket Number | No. 58639,58639 |
Citation | 573 S.W.2d 241 |
Parties | Ex parte Charles H. Fowler, Jr. Charles H. FOWLER, Jr., Petitioner, v. Fred HOOEY, Judge, 180th District Court, Harris County, Texas, Respondent. |
Court | Texas Court of Criminal Appeals |
No attorneys appearing.
En Banc.
OPINION ON COURT'S MOTION FOR REHEARING
The prior opinion of the Court is withdrawn.
We have before us a purported appeal from an order of the trial court in a habeas corpus proceeding in which the appellant sought a reduction in bail pending appeal and in which appellant also sought a transfer from the Texas Department of Corrections to the Harris County Jail pending his appeal.
We also have before us an original application for writ of mandamus in which the petitioner requests this Court to compel the Honorable Fred Hooey, the trial judge in said habeas corpus matter, to conduct a hearing in response to his said application for writ of habeas corpus.
In looking at the records before us in regard to both the habeas corpus and the mandamus matters, we find the facts to be as follows:
The appellant-petitioner, Fowler, was convicted of theft under a five count indictment and was assessed a punishment of fifteen years' confinement in the Texas Department of Corrections and a fine of $1500 on each count. He thereafter gave notice of appeal and was committed to the Texas Department of Corrections pending his appeal.
On March 22, 1978 appellant-petitioner filed an application for writ of habeas corpus in the trial court, asking that he be transferred from the Texas Department of Corrections to the Harris County Jail on the ground that he was sentenced to confinement not to exceed fifteen years and that he had not requested to be transferred to the Texas Department of Corrections. In that application he also requested that bail pending appeal be set in a reasonable amount. In response to this application, the trial judge entered an order setting bail at "$15,000 on each count or a total of $75,000 . . ." The trial court made no order respecting a change of custody. No appeal was taken from the trial court's action.
On May 3, 1978, appellant filed a second application for writ of habeas corpus in which he again sought to be transferred from the Texas Department of Corrections to the Harris County Jail on the same ground alleged in his first application. Also, in the second application, he sought a reduction of bail from $75,000 to $25,000. The trial judge denied the second application without a hearing. There is no indication in the record that the trial court ever issued a writ of habeas corpus.
As to the application for writ of mandamus, two questions are presented. First of all, petitioner requests that this Court require the trial court to order his transfer from the Texas Department of Corrections to the Harris County Jail. This relief is denied.
It is apparently the petitioner's reasoning that since his punishment does not exceed fifteen years' confinement he should not be transferred to the Texas Department of Corrections pending the outcome of his appeal. This reasoning overlooks the provisions of Article 42.09, V.A.C.C.P. pertaining to the delivery to the place of confinement. That article provides:
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Ex parte Carter
... ... Harman, 788 S.W.2d 192, 193 (Tex.App.--Houston [1st Dist.] 1990, no pet.); Ex parte Fowler, 573 S.W.2d 241, 244 (Tex.Crim.App.1978). The issuance of the writ is a necessary step for the ... ...
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Weiner v. Dial, 69090
... ... Some of the confusion arose in Ex parte Fowler, 573 S.W.2d 241 (Tex.Cr.App.1978), when this court held that the Court of Criminal Appeals would no ... ...
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Ex parte Carter
... ... Ex parte Fowler, 573 S.W.2d 241, 244 (Tex.Crim.App.1978), overruled on other grounds, Ex parte Spaulding, 612 ... ...
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Ex parte Brown
... ... Ex parte Fowler, 573 S.W.2d 241, 244 (Tex.Crim.App.1978). The issuance of the writ is a necessary step for the ... ...