Opinion
No. 05-20-00729-CR
03-24-2021
EX PARTE ALIX HENRY SANDERS
On Appeal from the County Criminal Court No. 3 Dallas County, Texas
Trial Court Cause No. MC20A1137
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Goldstein
On September 12, 2019, a jury convicted Alix Henry Sanders of the misdemeanor offense of driving while intoxicated. The trial court sentenced him to 120 days of confinement in the Dallas County jail, probated for twelve months. Although appellant filed a motion for new trial, he did not file a notice of appeal.
Six months later, appellant filed an article 11.072 application for writ of habeas corpus in the trial court, seeking an out-of-time appeal. Following a June 23, 2020 hearing, the trial court held:
This is the ruling of the Court: The trial court does lose plenary power generally 30 days after the motion for new trial was either denied or overruled by operation of law.
By looking at 11.072, writ of habeas corpus, filed in this matter by the Defendant, Alix Sanders, it states that he's requesting he be permitted to file an out-of-time notice of appeal. I don't believe the Court has the ability to grant the out-of-time notice of appeal. I believe that should go straight to the Fifth Court of Appeals, relief to file an out-of-time notice, but this Court does not prevent him from doing that, and so I'm going to deny the application on the writ and let you file your out-of-time notice with the Fifth District Court of Appeals.The trial court signed a written order on July 14, 2020, denying appellant's writ of habeas corpus. This timely appeal followed.
In his brief, appellant contends the trial court erred by denying his article 11.072 writ of habeas corpus and the relief he requested. The State agrees the trial court erred by denying the writ but notes that the trial court did not consider or rule on the merits of appellant's writ; rather the trial court denied relief because it concluded it lost "plenary power" and "did not [have] the ability to grant" the out-of-time appeal. Nevertheless, the State concedes the denial was error and asks this Court to reverse and remand the appeal to the trial court to address the merits of appellant's writ. We agree.
A county criminal court has original jurisdiction to grant writs of habeas corpus in misdemeanor cases "in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1; see Ex parte Hiracheta, 307 S.W.3d 323, 325 (Tex. Crim. App. 2010) (applicant must file application for article 11.072 writ of habeas corpus in trial court in which community supervision was imposed). This includes jurisdiction over a habeas application in which the applicant seeks an out-of-time appeal. Ex parte Valdez, 489 S.W.3d 462, 465 (Tex. Crim. App. 2016) (trial court with habeas authority had power to grant out-of-time appeal); see Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558-59 (Tex. Crim. App. 1989) ("We hold that the district court had jurisdiction to entertain the writ of habeas corpus, and applicant in this cause properly invoked that jurisdiction by filing his writ with the district court. Thus, the district court had jurisdiction of the habeas application. Since the district court had this jurisdiction, it had the authority to grant an out-of-time appeal.")). In contrast, this Court does not have original habeas corpus jurisdiction and has no authority to grant out-of-time appeals. Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
Appellant was convicted of misdemeanor driving while intoxicated in County Criminal Court No. 3, but his sentence was probated. After his appointed trial counsel failed to file a timely notice of appeal, appellant filed an article 11.072 writ of habeas corpus in that court, i.e., "the court in which community supervision was imposed." See TEX. CODE CRIM. PROC. ANN. art. 11.072, § 2. Because that court had jurisdiction over his habeas application and could grant or deny habeas relief, including an out-of-time appeal, the trial court erred by denying appellant's writ on the ground that it lost plenary power.
We sustain appellant's issue and remand the case to County Criminal Court No. 3 for a determination of whether appellant is entitled to an out-of-time appeal from the September 12, 2019 judgment. In making this determination, County Criminal Court No. 3 may take additional evidence on the issue, including evidence by affidavit. If County Criminal Court No. 3 determines that appellant is entitled to an out-of-time appeal, the order granting the relief shall include language that specifically notifies appellant of the deadline for filing the documents required to perfect the appeal. See, e.g., TEX. R. APP. P. 26.2; Mestas v. State, 214 S.W.3d 1, 2 (Tex. Crim. App. 2007) (example of setting deadline for perfecting appeal following grant of out-of-time appeal).
We reverse the trial court's order and remand for further proceedings consistent with this opinion.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
200729F.U05
JUDGMENT
On Appeal from the County Criminal Court No. 3, Dallas County, Texas
Trial Court Cause No. MC20A1137.
Opinion delivered by Justice Goldstein. Justices Partida-Kipness and Pedersen, III participating.
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the cause REMANDED for further proceedings consistent with this opinion. Judgment entered March 24, 2021