Opinion
04-23-00432-CR
07-30-2024
EX PARTE Jorge Luis VAZQUEZ PEREZ
From the County Court, Kinney County, Texas Trial Court No. 12228CR Honorable Susan D. Reed, Judge Presiding.
ORDER
PER CURIAM
On February 24, 2022, the State charged Appellant, Jorge Luis Vazquez Perez, by information with the misdemeanor offense of criminal trespass. Upon the filing of the information, the County Clerk assigned the case a cause number-12228CR.
On December 14, 2022, Vazquez Perez filed an application for pretrial writ of habeas corpus, arguing that the State violated his federal and state constitutional rights to equal protection. Subsequently, on December 15, 2022, Vazquez Perez filed a second application for pretrial writ of habeas corpus, arguing that the State violated his federal and state constitutional rights by deporting him. Although habeas corpus proceedings are separate proceedings independent of the underlying criminal case that should be assigned their own cause numbers, both of Vazquez Perez's applications were filed under cause number 12228CR- neither was assigned a new cause number. See Ex parte Carter, 849 S.W.2d 410, 411 n.2 (Tex. App.-San Antonio 1993, pet. ref'd).
Vazquez Perez's December 15, 2022 habeas application sought neither to amend nor to supplement his December 14, 2022 application. Cf. Ex parte Speckman, 537 S.W.3d 49, 55 n.9 (Tex. Crim. App. 2017) (explaining the difference between an "amended application" and a "supplemental application"). Further, because Vazquez Perez is challenging the restraints on his liberty imposed before trial, rather than challenging a conviction, he is not restricted to filing a single application for writ of habeas corpus. Compare Tex. Code Crim. Proc. arts. 11.06, 11.09 (containing no explicit restrictions on filing subsequent applications for pretrial habeas relief), with Tex. Code Crim. Proc. art. 11.07, § 4(a) (prohibiting court from considering merits of subsequent habeas application unless it meets specified conditions).
On February 1, 2023, Vazquez Perez filed a "Defendant's Request for Writ Hearing," seeking a hearing on his equal protection writ application-the application filed on December 14, 2022.
On February 18, 2023, the trial court entered an "Order on Application for Writ of Habeas Corpus," stating that the trial court had considered "the Application for Pretrial Writ of the application it considered and set a schedule for the submission of evidence.
On February 22, 2023, Vazquez Perez submitted evidence to the trial court relating to his equal protection claim.
On March 7, 2023, the trial court entered a second "Order on Application for Writ of Habeas Corpus," again stating that the court had considered "the Application for Pretrial Writ of Habeas Corpus" and that it "should be . . . [d]enied without hearing."
On March 25, 2023, the trial court entered a third "Order on Application for Writ of Habeas Corpus." This order stated that the trial court denied the application it had considered "without issuing writ."
On April 20, 2023, Vazquez Perez filed a Notice of Appeal, stating that he was appealing from "the appealable order of the trial court dated 3/25/2023, in which that Court denied relief on" Vazquez Perez's pretrial habeas application.
In general, a notice of appeal must be filed within 30 days after the trial court enters an appealable order. Tex.R.App.P. 26.2(a)(1). To the extent Vazquez Perez is attempting to appeal the trial court's March 7, 2023 order, his notice of appeal was due by April 6, 2023. But he did not file his notice of appeal until April 20, 2023. It therefore appears that we lack jurisdiction over any attempted appeal from the trial court's March 7, 2023 order.
Further, to the extent Vazquez Perez is attempting to appeal the trial court's March 25, 2023 order, there is no right to an appeal when a trial court refuses to issue a habeas writ or dismisses or denies a habeas application without ruling on the merits of the applicant's claims. See Ex parte Villanueva, 252 S.W.3d 391, 394, 395 (Tex. Crim. App. 2008); Purchase v. State, 176 S.W.3d 406, 407 (Tex. App-Houston [1st Dist] 2004, no pet.). Therefore, because the clerk's record does not contain an order granting a hearing on the merits or otherwise indicate that the trial court considered the merits of the habeas application that resulted in the March 25, 2023 order, it appears we lack jurisdiction over an appeal from that order. See Ex parte Santiago Villalobos, No. 04-23-00305-CR, 2023 WL 5604192, at *1-2 (Tex. App-San Antonio Aug. 30, 2023, no pet.); In re Lara Belmontes, 675 S.W.3d 113, 115 (Tex. App-San Antonio 2023, no pet); Purchase, 176 S.W.3d at 407; Ex parte Bowers, 36 S.W.3d 926, 927 (Tex. App - Dallas 2001, pet. refd).
Accordingly, we ORDER Vazquez Perez to file a response to this order no later than August 9, 2024, demonstrating how this court has jurisdiction over his appeal. If Vazquez Perez fails to file a response showing that we have jurisdiction over this appeal, we will dismiss the appeal for want of jurisdiction. See Purchase, 176 S.W.3d at 407; Bowers, 36 S.W.3d at 927.
It is so ORDERED.