Opinion
08-22-00234-CR
12-09-2022
Ex Parte: Bilal Muhammad, Appellant.
Do Not Publish
Appeal from the 168th Judicial District Court of El Paso County, Texas (TC# 2019DCV2636)
Before Rodriguez, C.J., Alley, J., and Marion, C.J. (Ret.) Marion, C.J. (Ret.) (Sitting by Assignment)
MEMORANDUM OPINION
YVONNE T. RODRIGUEZ., CHIEF JUSTICE
Appellant, Bilal Muhammad, pro se, attempts to appeal the purported denial of his pre-trial application for writ of habeas corpus and purported anti-SLAPP motion. We dismiss for want of jurisdiction.
Appellant was indicted for the murder of Lane Wiscombe, allegedly occurring in December 2015, and currently pending in trial, cause no. 20160D01015. See In re Muhammad, No. 08-22-00033-CR, 2022 WL 2207516, at *1 (Tex.App.-El Paso, June 21, 2022, no pet.) (mem. op., not designated for publication). That indictment remains pending in the 168th District Court of El Paso County, Texas. Since his indictment, Appellant has filed a number of appeals attempting to challenge, in one manner or another, matters concerning bond and seeking pre-trial release. Most of these attempted appeals have been dismissed for want of jurisdiction. This marks Appellant's seventh, pro se appearance before this Court to challenge pre-trial bail conditions.
In re Muhammed, 2022 WL 2207516, at *1 (denying pro se mandamus writ petition); Ex parte Muhammad, No. 8- 21-00199-CR, 2022 WL 601937, at *3 (Tex.App.-El Paso, Mar. 1, 2022, pet. ref'd)(mem. op. on reh'g, not designated for publication)(dismissing pro se attempted appeal for want of jurisdiction); In re Muhammad, No. 08- 21-00123-CR, 2022 WL 389924, at *1 (Tex.App.-El Paso, Feb. 9, 2022, no pet.)(mem. op., not designated for publication)(denying pro se mandamus writ petition); Muhammad v. State, No. 08-21-00134-CR, 2021 WL 4988308, at *1 (Tex.App.-El Paso, Oct. 7, 2021, no pet.)(mem. op., not designated for publication)(dismissing pro se attempted appeal for want of jurisdiction); Muhammad v. State, No. 08-18-00125-CR, 2018 WL 3751742, at *1 (Tex.App.-El Paso, Aug. 8, 2018, pet. ref'd)(mem. op., not designated for publication)(dismissing pro se attempted appeal for want of jurisdiction); Ex parte Muhammad, No. 08-16-00079-CR, 2016 WL 3563924, at *1 (Tex.App.-El Paso, June 29, 2016, pet. ref'd)(mem. op., not designated for publication)(dismissing pro se attempted appeal for want of jurisdiction).
The basis of this attempted appeal is an "Emergency Petition for the Civil Writ of Habeas Corpus," which Appellant filed on July 15, 2019, and in which Appellant again challenges his pre-trial bond. Asserting that the 168th District Court could not hear and rule on his pre-trial writ because "it is a respondent," Appellant asked the District Clerk to transfer the cause to the 243rd District Court of El Paso County, Texas because the District Clerk had allegedly "placed [it] in the wrong court." The District Clerk advised Appellant a pre-trial habeas writ application was properly heard in the court where the underlying criminal matter was pending. See In re Muhammed, 2022 WL 2207516, at *7 (noting the court of indictment has priority jurisdiction over a pre-trial habeas application). Still, in August 2019, Appellant filed an "Ex Parte Motion to Consider the Writ" and a "Motion to Reconsider," asking the 243rd District Court to consider his writ on the merits, which was met with no response. In December 2021 and again in February 2022, Appellant filed a request to set the writ application for a hearing, this time in the 168th District Court. The record before us does not indicate that a hearing was held or that the trial court entered a written order denying the relief requested by Appellant.
Nonetheless, on November 18, 2022, Appellant filed directly in this Court a pro se notice of appeal in which he purported to challenge both the denial of his pre-trial writ, as well as denial of his anti-SLAPP motion by operation of law. We have conducted a diligent search of the clerk's record in this cause and are unable to locate any such anti-SLAPP motion filed in the court below. See Tex.R.App.P. 33.1 (presentation of claim to trial court by timely request, objection, or motion prerequisite to appellate review).
Turning to the complained-of pre-trial writ application in this case, when, as here, there is no written order denying the application, Appellant fails to properly invoke our jurisdiction. State v. Wachtendorf, 475 S.W.3d 895, 903-04 (Tex.Crim.App. 2015); State v. Sanavongxay, 407 S.W.3d 252, 258-259 (Tex.Crim.App. 2012) (concluding that lack of written order leaves court of appeals without jurisdiction over appeal); Nikrasch v. State, 698 S.W.2d 443, 450 (Tex.App.- Dallas 1985, no pet.)(court of appeals has no jurisdiction over appeal absent written judgment or order).
Accordingly, we dismiss Appellant's attempted appeal for want of jurisdiction. See Wachtendorf, 475 S.W.3d at 903-04; Sanavongxay, 407 S.W.3d at 258; Payne v. State, No. 12-17-00143-CR, 2017 WL 2570829, at *1 (Tex.App.-Tyler, June 14, 2017 no pet.)(per curiam)(mem. op., not designated for publication)(dismissing appeal from pre-trial habeas application for want of jurisdiction absent written order); Walton v. State, No. 02-18-00396-CR, No. 02-18-00397-CR, No. 02-18-00398-CR, 2018 WL 6424242, at *1 (Tex.App.-Fort Worth Dec. 6, 2018, no pet.)(per curiam)(mem. op., not designated for publication)(dismissing appeal for want of jurisdiction because appellate court had not received "a written order from the trial court- a prerequisite to appealability"); Ex parte Wiley, 949 S.W.2d 3, 4 (Tex.App.-Fort Worth 1996, no pet.). All pending motions are denied as moot.
CONCURRENCE
JEFF ALLEY, Justice
The majority is of course correct that based on the record here, and the law that governs our conduct, there is no relief that can be granted in this proceeding. I write separately only to emphasize the stain that this case has become on the justice system. In one of the prior appeals before us in March of this year, we wrote:
From our record, Muhammad has been incarcerated in the County jail from December 2015 up until today, save only the brief several months he was allowed to stay at the Rescue Mission. Nearly six years of pre-trial detention speaks for itself. The pandemic has brought with it many challenges, including the inability of trial courts to promptly try the volume of criminal cases they once did. The delay in trying cases, however, only begets more strain on the court system, as the litany of mandamus and habeas filings in this case demonstrate. We deny the relief here, but urge the lower court, defense counsel, and the State's district attorney to set this matter for trial. We do not ascribe any fault for any period of delay; our limited record does not allow for, nor require that inquiry. But pandemic or no pandemic, it is time to get this case to trial.Ex parte Muhammad, 08-21-00199-CR, 2022 WL 601937, at *3 (Tex. App.--El Paso Mar. 1, 2022, pet. ref'd). Remarkably, another eight months have passed without this case being disposed of.
As a young lawyer, I had the privilege of practicing before the Honorable Lucias Bunton, who presided over the United States District Court for the Western District of Texas. Faced with an October trial setting in a multi-party case with witnesses from around the country, the several trial lawyers jointly moved to continue the case for some seemingly valid, but now long forgotten reason. Judge Bunton granted the motion but reset the case on December 23rd with language in his order to the effect that not even death of counsel would suffice to support any further continuance. And indeed, the case was tried on December 23rd with the jury returning a verdict late on Christmas Eve. Judge Bunton, though irascible at times, understood that litigants' convenience must sometime give way to the system's need to promptly dispense justice.
From our perch on the 12th floor of the El Paso County Courthouse, I cannot say why this case has not been tried; our cold written record contains only the several motions and orders substituting counsel, and motions for continuance that have resulted in an almost seven-year delay in resolving the case. I also acknowledge the effect of COVID-19, but am also not blind to the jury panels now regularly being qualified in our courthouse. Even with the many questions for why this case has taken so long to resolve, I can make two observations with confidence. First, Mr. Muhammad has now spent more time in pretrial incarceration than what the jury could assess as the low end of the punishment range if he is convicted. See Tex. Penal Code Ann. § 12.32(a) (punishment range for first degree felony is not more than 99 years or less than 5 years). Second, when the epitaph of this case is written, no one will say, "This was their finest hour."