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Ex Parte Rinkevich

Court of Appeals of Texas, Fifth District, Dallas
Mar 8, 2007
No. 05-06-01506-CR (Tex. App. Mar. 8, 2007)

Opinion

No. 05-06-01506-CR

Opinion Filed March 8, 2007. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the County Criminal Court No. 6, Dallas County, Texas, Trial Court Cause No. MC05-B6250-G.

Before Justices FITZGERALD, RICHTER, and FRANCIS.

Opinion By Justice RICHTER.


MEMORANDUM OPINION


The State of Texas appeals the trial judge's order granting the appellee, Thomas Paul Rinkevich, relief on his application for writ of habeas corpus. In four issues, the State asserts (i) the trial court erred in granting the application for writ of habeas corpus when there was no confinement, restraint, or collateral consequences; (ii) the trial court erred in finding that appellee had sustained his burden of proof with regards to his allegations of ineffective assistance of counsel; (iii) the trial court erred in granting the application for writ of habeas corpus when the application did not meet statutory requirements, and (iv) the Dallas County Criminal Court No. 6 lacked jurisdiction to hear the writ application. See Tex. Gov't Code Ann. § 25.0594 (Vernon 2004); Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005). Appellee argues (i) because the State did not timely file its notice of appeal, it lacks authority to prosecute this appeal, (ii) because the State failed to have a reporter's record made of the proceedings, the State cannot complain of evidentiary errors on an incomplete record, and (iii) because there is no record that the State objected at trial to the contents of the application or to jurisdiction, error has not been preserved. We vacate the trial judge's order granting applicant the relief sought, and order the application dismissed. See Tex R. App. P. 43.2(e).

Background

The appellee was convicted of assault by contact in the Rowlett Municipal Court on July 19, 2005. The judge assessed a $400 fine, which appellee paid on September 28, 2005. On December 6, 2005, appellee filed an application for writ of habeas corpus in (Dallas) County Court of Criminal Appeals No. 1. An affidavit from appellee's trial counsel, Nancy Gail Huggins, was submitted as an exhibit to the application, in which she states she did not advise appellee to request the trial be recorded because she mistakenly believed the assault case was before a justice of the peace. She stated her belief that the justice of the peace court was not a court of record, and an appeal would be by trial de novo. Appellee did not request the trial be recorded. On December 9, 2005, the application was transferred to and received by County Criminal Court No. 6. On March 9, 2006, the magistrate judge entered an order containing findings of fact and conclusions of law setting aside appellee's conviction and remanding to the municipal court for further disposition. On March 10, 2006, the court entered an order adopting the March 9, 2006 order. On November 3, 2006, the court withdrew its March 10, 2006 order and entered a new order issuing the writ, vacating the July 19, 2005 conviction and returning appellee to the original position of answering the complaint. On November 7, 2006, the State filed a notice of appeal.

Jurisdiction

In its fourth issue, the State argues that County Criminal Court No. 6 lacked jurisdiction to hear the writ application. See Tex. Gov't Code Ann. § 25.0594 (Vernon 2004); Tex. Code Crim. Proc. Ann. art. 11.09 (Vernon 2005). Appellee responds the State raised no objection to jurisdiction, thereby waiving this argument. "[C]ounty . . . courts have original jurisdiction in habeas corpus proceedings when attacks are made upon the validity of misdemeanor convictions." Ex parte Crosley, 548 S.W.2d 409 (Tex.Crim.App. 1977). Appellee challenged the misdemeanor conviction by way of application for writ of habeas corpus in the county court. The county court properly exercised original jurisdiction over the application. Therefore, the State's fourth issue is overruled.

Timeliness of Appeal

In his first issue, appellee argues that because the State did not timely file its notice of appeal, it lacks authority to prosecute this appeal. A notice of appeal must be filed within thirty days after entry of an appealable order. See Tex R. App. P. 26.2(1). The State timely filed its notice of appeal four days after entry of the trial court's November 3, 2006 order. Therefore, appellee's first issue is overruled.

Cognizability

In its first issue, the State asserts the trial court erred in granting the application for writ of habeas corpus absent confinement, restraint, or collateral consequences. The State essentially challenges the application as failing to present a cognizable issue. See Ex parte McCullough, 966 S.W.2d 529, 531 (Tex.Crim.App. 1998) (per curiam). Appellee responds that because the State failed to have a reporter's record made of the proceedings, the State cannot complain of evidentiary errors on an incomplete record. We agree with the State. A defendant convicted of a misdemeanor offense may attack the validity of the conviction by way of habeas corpus if he is either (i) confined or restrained as a result of a misdemeanor charge or conviction, or (ii) is no longer confined, but is subject to collateral legal consequences resulting from the conviction. See Tex. Const. art. V, § 8; Tex. Code Crim. Proc. Ann. arts. 11.09, 11.21 and 11.22 (Vernon 2005); Ex parte McCullough, 966 S.W.2d at 531-32; Ex parte Crosley, 548 S.W.2d at 409-10. Appellee did not assert in his writ application or in the memorandum of law in support of the writ application that he was confined, restrained, or subject to collateral legal consequences as a result of the misdemeanor conviction, nor did he request release from custody or restraint. Further, he sought as relief only that the judgment and sentence be set aside. Although appellee has not alleged he is subject to confinement, restraint, or collateral legal consequences, assuming, without deciding, the $400 fine may constitute confinement, restraint, or collateral legal consequences, because appellee paid his fine before he filed the writ application, he was not confined, restrained or subject to collateral legal consequences either when he filed his writ application or at the present time. See Dahesh v. State, 51 S.W.3d 300, 301-03 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Moreover, it is well-settled that voluntarily paying the fine in a misdemeanor case renders the appeal from the judgment moot. See Crawford v. Campbell, 124 S.W.3d 778, 780 (Tex.App.-Houston [1st Dist.] 2003, no pet.) ( citing Fouke v. State, 529 S.W.2d 772, 773 (Tex.Crim.App. 1975)). Therefore, appellee is not entitled to relief under Article 11.09.

Conclusion

Because we determine that County Criminal Court No. 6 had jurisdiction, the notice of appeal was timely filed, and appellee failed to raise a cognizable issue in that court, we need not address the remaining issues. We vacate the trial judge's order granting applicant the relief sought, and order the application dismissed.


Summaries of

Ex Parte Rinkevich

Court of Appeals of Texas, Fifth District, Dallas
Mar 8, 2007
No. 05-06-01506-CR (Tex. App. Mar. 8, 2007)
Case details for

Ex Parte Rinkevich

Case Details

Full title:EX PARTE THOMAS PAUL RINKEVICH, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 8, 2007

Citations

No. 05-06-01506-CR (Tex. App. Mar. 8, 2007)