Sosa v. State, 04-84-00309-CR
| Decision Date | 25 July 1984 |
| Docket Number | No. 04-84-00309-CR,04-84-00309-CR |
| Citation | 678 S.W.2d 136 |
| Parties | Leroy V. SOSA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Allan R. Manka, San Antonio, for appellant.
Alger H. Kendall, Dist. Atty., Karnes City, for appellee.
Before ESQUIVEL, CANTU and DIAL, JJ.
This is a purported appeal from a denial of habeas corpus. Petitioner filed a writ of habeas corpus in the trial court seeking reductions in the amount of bail required of him on three pending charges. The trial court conducted a hearing and then entered an order denying the writ.
It is obvious from the record before us that the trial court refused to issue or grant the writ. There is no written order of the court in connection with the application of the writ to show the writ was issued or granted. The only order in the record is an order denying the writ. Under such circumstances, we do not have jurisdiction in such a situation because there is no appeal from a refusal to issue or grant a writ of habeas corpus even after a hearing. See Ex parte Noe, 646 S.W.2d 230 (Tex.Crim.App.1983).
Even if it could be argued that the trial court did issue the writ and following the hearing thereon denied relief, we would still not have jurisdiction to entertain this matter. The record before us fails to show that notice of appeal was ever given and there is no showing of good cause for the absence of such notice. Absent such notice, jurisdiction is not established in the appellate court. See Ex parte Noe, 646 S.W.2d 230 (Tex.Crim.App.1983).
This cause is dismissed for want of jurisdiction.
I agree that the attempted appeal must be dismissed for want of jurisdiction inasmuch as notice of appeal is conspicuously absent from the record.
I cannot, however, agree that an appeal was not possible because the trial court refused to issue or grant the writ. The record is clear, even in the absence of a written order, that the trial court made the writ returnable for a date certain for the purpose of conducting a hearing to determine whether the relief sought would be granted or denied.
The oral announcement of the trial court after a lengthy hearing leaves no doubt that the relief sought was denied only after a full consideration of the merits of the application. 1
On July 25, 1984, this Court issued an opinion dismissing the purported appeal from a denial of habeas corpus in this cause. In our opinion, we held that we were without jurisdiction to entertain this appeal for two reasons: first, the record before us revealed that the trial court had refused to issue or grant the writ, and secondly, there was no notice of appeal. Petitioner has filed a motion to reinstate the appeal along with supporting documentation to show that he timely gave notice of appeal.
While we may now observe that petitioner timely filed a notice of appeal, there is still nothing in this cause from which petitioner may take an appeal. The record before us still shows that the trial court refused to issue or grant the writ. In the copy of the petition for writ of habeas corpus there is a provision for the issuance of the writ by order of the court. This provision has appropriate blank spaces for the signatures of the judge issuing the writ, the court from which the writ is being issued and the appropriate time and places designated. This provision was not signed by any judge and all the blank spaces are just that, blank. At the hearing in the trial court, the prosecutor pointed out that no writ had yet been issued by any court. We adhere to our first reason for dismissing this cause given on original submission. We do not have jurisdiction in this instance because there is no appeal from a refusal to issue or grant a writ of habeas corpus even after a hearing. See Ex parte Noe, 646 S.W.2d 230 (Tex.Crim.App.1983).
Petitioner's motion to reinstate the appeal is denied.
By his motion to reinstate appeal, appellant has attempted to cure the defects pointed out in this court's opinion dated July 25, 1984, dismissing his appeal for want of jurisdiction.
Attached to his motion are three exhibits, namely: 1) "Application for Writ of Habeas Corpus together with Fiat and Waiver of Service," 2) response by the sheriff of Wilson County acknowledging custody of the appellant and producing the body of appellant before the judge of the 218th District Court of Wilson County in response to a writ of habeas corpus issued by the court, and 3) notice of appeal to this Court.
In my previous opinion I concurred with the majority in dismissing because of a lack of notice of appeal in the record. However, I disagreed with the majority that the trial court's order was not appealable. I remain convinced that the majority was wrong then and remains in error now.
The entire basis for the majority's holding is predicated upon the use of a pre-printed form containing blanks in the Fiat portion of the instrument indicating, at best, that the trial court did not issue the writ through the use of this expedient form. 1
The response of the sheriff belies the majority's conclusion that the writ did not issue. 2
His response reads in haec verba:
LEROY V. SOSA
IN THE DISTRICT COURT
WILSON COUNTY, TEXAS
I.
In response to your Honor's writ of habeas corpus, I respectfully state that it is true that I have in my custody and under my restraint the said Leroy V. Sosa, according to the statement in his petition.
II.
I took Leroy V. Sosa into custody by virtue of a warrant of arrest issued on December 18, 1983 by Rose Toscano, Justice of the Peace, Precinct No. 1, Wilson County, Texas, and now hold the said Leroy V. Sosa by virtue of the authority of the capias issued after the return of an indictment by the Wilson County Grand Jury. The warrant of arrest, the indictment and the capias are all annexed hereto as a part of this return.
III.
Bond has been set on each of Leroy V. Sosa's criminal indictments at $250,000.00.
IV.
All other allegations contained in the petition of Leroy V. Sosa, I deny.
V.
I also now bring before the Court, in obedience to your Honor's Order, the person of the said Leroy V. Sosa.
Sworn to and subscribed before me by Marvin H. Baumann on this the 22nd day of June, 1984.
I continue to adhere to my original belief that the writ issued and was made returnable for a date certain for the purpose of conducting a hearing to determine whether the relief sought would be granted or denied. 3 The sheriff's response leaves no doubt that appellant was taken before the trial court "in obedience to (His) Honor's Order" and that the relief sought by the writ was denied only after a full consideration of the merits of the application. 4
Contrary to the majority's holding, there is no requirement that the writ be directed to the custodian in writing, much less that a particular form be used to accomplish the intended result.
TEX.CODE CRIM.PROC.ANN. art. 11.27 (Vernon 1977) provides in pertinent part:
The writ may be served by...
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Ex parte Carter
...(Tex.Crim.App.1983); Walker, 813 S.W.2d at 571; Ex parte Herrera, 750 S.W.2d 923, 925 (Tex.App.--Corpus Christi 1988, no pet.); Sosa v. State, 678 S.W.2d 136, 137 (Tex.App.--San Antonio 1984, no pet.); Ex parte Reese, 666 S.W.2d 675, 677 (Tex.App.--Fort Worth 1984, pet. Whether a trial cour......
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