Opinion
No. 05-16-00234-CR
04-04-2016
EX PARTE MIGUEL GAMBOA
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-05075-2015
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Francis
Miguel Gamboa filed a pretrial application for writ of habeas corpus seeking a reduction of his bail. The trial court denied appellant relief by written order on December 31, 2015. Appellant filed a motion for new trial on January 29, 2016, which the trial court denied on February 16, 2016. Appellant filed his notice of appeal on February 29, 2016. We conclude we lack jurisdiction over the appeal.
"Jurisdiction concerns the power of a court to hear and determine a case." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the court lacks the power to act. See id. at 523. "The standard to determine whether an appellate court has jurisdiction to hear and determine a case 'is not whether the appeal is precluded by law, but whether the appeal is authorized by law.'" Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate courts may consider appeals by criminal defendants only after conviction or the entry of an appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.).
To invoke this Court's jurisdiction, an appellant must timely file a notice of appeal. See TEX. R. APP. P. 26.2(a); Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam). When no motion for new trial is filed or when a motion for new trial is not effective to extend the time to file a notice of appeal, an appellant's notice of appeal is due within thirty days of the date the appealable order is signed. See TEX. R. APP. P. 26.2(a)(1). A motion for new trial is not effective to extend the time to file a notice of appeal where there is no finding of guilt. See Welsh v. State, 108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.); see also TEX. R. APP. P. 21.1 (new trial after finding or verdict of guilt set aside or after assessment of punishment set aside); Ex parte Delgado, 214 S.W.3d 56, 58 (Tex. App.—El Paso 2006, pet. ref'd) (motion for new trial not effective to extend notice of appeal in habeas corpus proceeding).
In response to our letter questioning our jurisdiction over the appeal, appellant responded that this Court has jurisdiction under Texas Rule of Civil Procedure 26.1 because a habeas corpus proceeding is a civil, not a criminal, proceeding. Appellant also asserts that this Court should overrule Welsh v. State, and decline to follow Ex parte Delgado. The State did not file a letter brief. We disagree with appellant's assertion that this appeal is governed by rule 26.1, and we decline his invitation to overrule Welsh.
Disputes that arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and that arise as a result of or incident to a criminal prosecution, are criminal law matters. See Armstrong v. State, 340 SW.3d 759, 765 (Tex. Crim. App. 2011). Pretrial bail is governed by the Texas Code of Criminal Procedure, and an application for writ of habeas corpus seeking a reduction of bail is incident to the criminal prosecution. See id.; see generally TEX. CODE CRIM. P. ANN. arts. 17.01-.49 (West 2015 & Supp. 2015) (Bail). Therefore, an appeal from a trial court's order ruling on a pretrial application for writ of habeas corpus seeking a bond reduction is a criminal appeal. See Armstrong, 340 S.W.3d at 756; see also TEX. R. APP. P. 31 (Appeals in Habeas Corpus, Bail, and Extradition Proceedings in Criminal Cases); Ex parte Perry, No. PD-1067-15, 2016 WL 738237, at * 6 (Tex. Crim. App. Feb. 24, 2016) (Texas Court of Criminal Appeals discussing availability of pretrial habeas corpus review in criminal cases); Rangston v. State, 424 S.W.2d 49 (Tex. Crim. App. 2014) (Texas Court of Criminal Appeals defining parameters of appellate jurisdiction over pretrial bond proceedings in criminal cases under rule 31); Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (Texas Court of Criminal Appeals reviewing pretrial habeas ruling on constitutionality of statute under which prosecution brought); Ex parte Gill, 413 S.W.3d 425 (Tex. Crim. App. 2013) (Texas Court of Criminal Appeals reviewing ruling on pretrial habeas application seeking release on personal bond or bail reduction). We reject appellant's argument that this case involves a civil proceeding governed by Texas Rule of Appellate Procedure 26.1.
We now turn to the timeliness of appellant's notice of appeal. The trial court signed the order denying habeas corpus relief on December 31, 2015. Appellant's motion for new trial was ineffective to extend the time to file his notice of appeal. See Welsh, 108 S.W.3d at 922; Ex parte Delgado, 214 S.W.3d at 58. Therefore, appellant's notice of appeal was due by Monday, February 1, 2016. See TEX. R. APP. P. 4.1(a), 26.2(a)(1). Appellant's February 29, 2016 notice of appeal is untimely, leaving us without jurisdiction over the appeal.
We dismiss the appeal for want of jurisdiction.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160234F.U05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-05075-2015.
Opinion delivered by Justice Francis, Justices Lang-Miers and Myers participating.
Based on the Court's opinion of this date, we DISMISS the appeal for want of jurisdiction. Judgment entered April 4, 2016.