Opinion
No. 10-06-00073-CR
Order issued and filed June 21, 2006. DO NOT PUBLISH.
Appeal fromthe County Court, Robertson County, Texas, Trial Court No. 03-380CR. Appeal reinstated.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
ORDER
Daniel Lee Ainsworth filed a post-conviction petition for writ of habeas corpus with the County Court of Robertson County under article 11.09, Texas Code of Criminal Procedure, which pertains to misdemeanors. In it, he complains that his conviction is void because he was in custody in Amarillo, Texas, when the judgment was rendered. The trial court signed an order prepared by Ainsworth which states "it appears that the judgment should in all things be reversed and barred from further prosecution and the writ should be Denied." The underlined part is the portion completed by the court. Even though Ainsworth is not in custody on his driving while intoxicated conviction, the Court of Criminal Appeals has held that if Ainsworth has been convicted, he can file a petition for writ of habeas corpus under article 11.09. Ex Parte Schmidt, 109 S.W.3d 480 (Tex.Crim.App. 2003). But it is not clear from the trial court's order whether the court ruled on the merits of the petition or just refused to issue the writ. If he ruled on the merits, then Ainsworth can appeal; if he refused to issue the writ, Ainsworth cannot appeal. Ex parte McCullough, 966 S.W.2d 529, 531 (Tex.Crim.App. 1998); Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.Crim.App. 1991). We abated the case and asked the trial court to clarify his order. In a letter to this Court, the trial court said he intended to rule on the merits of the petition but now believes that ruling was improvident because the petition had not been served. The trial court wants us to let him withdraw his order and return the case so that he can consider it after proper procedures have been complied with. We had asked the trial court to give the clarification to the trial court clerk so that it could be made part of a supplemental record. This has not been done. Further, it does not appear that a copy of the clarification was provided to either Ainsworth or the State. Ainsworth's underlying complaint is that he was convicted of the offense of driving while intoxicated in Robertson County "in abstentia" because he was in custody in Amarillo at the time the judgment was rendered. He attaches to his petition a computerized printout which he contends shows he was not released from Amarillo until December 13, 2004; almost two months after he was convicted in Robertson County. However, this print out does not show from where he was released, when he was taken into custody, or if he was ever bench-warranted to Robertson County. There is only a hand-written note on the print-out which states, "Hope this is all you need! Lt. J. Shude [sic]." There is nothing that indicates who this person is that signed the note or who he works for. The docket sheet from Ainsworth's driving while intoxicated plea was not stamped that the defendant appeared in person. The plea paperwork, however, is signed by Ainsworth, and the judge signed the same paperwork which indicates Ainsworth was present, in open court. There is nothing on the paperwork that indicates it was faxed back and forth between the Court and Ainsworth. It appears that there was no oral hearing on the petition for writ of habeas corpus and that no record was made of the original plea. In the letter clarifying his ruling, the trial court made it clear that he was ruling on the merits of the petition. Because he was ruling on the merits of the petition, we cannot do what the trial court has requested, which is to set aside the order and remand for further proceedings, without the consent of Ainsworth and the State. We can only remand if we reverse the judgment, which requires a ruling on the merits of the appeal. TEX. R. APP. P. 43.2(d). Alternatively, we can vacate and dismiss the case, id. at (e), but that means the whole case, and Ainsworth would have to start over with a new petition. Since the trial court's response, Ainsworth has filed a motion to add an exhibit to his brief which he already filed in this appeal. We have not ruled on that motion. Ainsworth has also sent a status request that was neither signed nor served. Because Ainsworth will have the opportunity to file another full and complete brief as ordered below, the motion to add an exhibit to his brief is dismissed as moot. Although Ainsworth neither signed nor served a copy of his status request, we believe this Order adequately apprises him of the status of his appeal, and his letter will not be responded to beyond the information in this Order. We order the appeal reinstated. We also hereby order the clerk of this Court to return the original trial court response to the trial court clerk and order the trial court clerk to include it in a supplemental clerk's record and to file the supplemental clerk's record with this Court within 14 days of the date of this Order. The case will then go forward with briefing because a ruling on the merits of the petition gave us jurisdiction of the appeal. The parties are specifically directed to brief the issue of the apparent conflict within the judgment, that the conviction is reversed but the writ denied, which may be resolved in the opinion on the merits of the appeal; not now. Likewise, both parties must brief the effect, if any, of the apparent failure of Ainsworth to serve his petition on the State and the State's apparent lack of notice of the petition and ruling thereon. Ainsworth's time to file a new brief will begin to run when the supplemental clerk's record is filed. TEX. R. APP. P. 38.6(a). Alternatively, if Ainsworth and the State both agree that the trial court's existing order can be reversed and the proceeding remanded for further proceedings in the trial court, a written agreed motion to that effect should be presented to this Court within 21 days of the date of this Order.