Bilal Muhammad v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 27, 2023
• Docket: 08-23-00069-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ No. 08-23-00069-CR

EX PARTE: § Appeal from the

BILAL MUHAMMAD, § 168th Judicial District Court

Appellant. § of El Paso County, Texas

§ (TC# 2019DCV2636)

MEMORANDUM OPINION

Applicant, Bilal Muhammad, proceeding pro se, attempts to appeal a purported denial of

an “anti-SLAPP motion,” brought pursuant to the Texas Citizens Participation Act (TCPA). See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-27.011. 1 Muhammad claims he filed his anti-

SLAPP motion in support of an application for writ of habeas corpus filed in the court below. 2 We

dismiss for lack of jurisdiction.

1 The TCPA is popularly known as the Texas Anti-SLAPP statute, which is designed to prevent strategic lawsuits against public participation. Mesquite Services, LLC v. Standard E&S, LLC, 610 S.W.3d 548, 555 (Tex. App.— Amarillo 2020, pet. denied). As provided by the legislature, the stated purpose of the TCPA is to encourage and safeguard certain delineated constitutional rights while “at the the same time, protect[ing] the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002. Among its provisions, the TCPA gives a party to a legal action the ability to move to dismiss a case that arises from the party’s exercise of one of the listed constitutional rights. Id. § 27.003. The TCPA expressly does not apply to “an enforcement action that is brought in the name of this state by . . . a district attorney, a criminal district attorney, or a county attorney.” Id. § 27.010 (a)(1). 2 As to this appeal, we have yet to receive a clerk’s record corresponding to Muhammad’s notice of appeal. Consequently, we have no basis to confirm whether an Anti-SLAPP motion has been filed in the trial court, and thus, This marks Muhammad’s eighth pro se appearance before this Court wherein he brings

various challenges against the terms of his pre-trial detention stemming from a pending indictment

accusing him of the 2015 murder of Lane Wiscombe. See Ex parte Muhammad, No. 08-22-00234-

CR, 2022 WL 17553028, at *1 n.1 (Tex. App.—El Paso Dec. 9, 2022, no pet.) (mem. op., not

designated for publication) (listing previous appeals). Muhammad awaits trial under cause number

20160D01015 in the 168th Judicial District Court of El Paso County, Texas, based on the pending

indictment. Id. at *1.

In his most recent appeal to this Court, Muhammad claimed to be appealing, amongst other

things, the “denial of his anti-SLAPP motion by operation of law” in his pending application for a

writ of habeas corpus challenging his pre-trial bail conditions. Id. at *2. There, we held that we did

not have jurisdiction to consider that portion of Muhammad’s appeal. Id. We noted, after “a

diligent search of the clerk’s record in this cause [we] are unable to locate any such anti-SLAPP

motion filed in the court below.” Id. (citing TEX. R. APP. P. 33.1) (providing that a presentation of

a claim to the trial court by timely request, objection, or motion is a prerequisite to appellate

review).

In this latest appeal, Muhammad’s notice of appeal claims that he filed his anti-SLAPP

motion with the trial court clerk on January 4, 2023, approximately a month after our last decision. 3

Muhammad now argues the TCPA allows him an interlocutory appeal because his motion was

denied by operation of law when the trial court did not rule on it within thirty days of it being filed.

Indeed, Muhammad is correct that § 27.008(a) of the TCPA considers a motion “denied by

no basis for understanding the argument or claim asserted by said motion. We limit our opinion to whether Muhammad timely provided an appealable order supporting our jurisdiction of this appeal. 3 On March 3, 2023, the Clerk of the Court sent a letter to the parties informing them that it appeared there was no appealable order or judgment in support of the appeal. The Clerk provided notice of intent to dismiss the appeal for want of jurisdiction unless any party showed, within 10 days from the date of the notice, grounds for continuing the appeal. See TEX. R. APP. P. 27.1(b) (pertaining to a prematurely filed notice of appeal in a criminal case).

2 operation of law” if the trial court does not timely rule on it. In that situation, a movant may

challenge the denial of the motion by bringing an interlocutory appeal to this Court. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.008(a).

Here, however, Muhammad miscalculates the time in which a trial court has to issue its

ruling. The TCPA states that a motion filed under its terms is deemed denied by operation of law

only if it is not ruled on by “the 30th day following the date the hearing on the motion concludes.”

Id. §§ 27.005(a), 27.008(a) (emphasis added). Not, as Muhammad argues, thirty days after the

motion is filed. Further, the TCPA requires that the trial court hold a hearing within 60 days, or

within 90 days in certain circumstances, “after service of the motion[.]” Id. § 27.004(a) (emphasis

added). Thus, the trial court has up to 120 days after a TCPA motion is served to issue its ruling.

And Muhammad does not suggest anywhere in his filings—nor have we found any indication

otherwise—that the TCPA motion has been served to start this clock. Yet, even assuming the

motion was properly served on January 4, 2023—the date Muhammad claims it was filed—the

trial court would still have until approximately May 4, 2023, to issue its ruling before it is deemed

denied. Because the trial court’s time to issue an order has not expired, Muhammad’s motion has

not been denied by operation of law and the interlocutory appeal permitted by § 27.008(a) is not

applicable. Consequently, this Court does not have jurisdiction. Cabral v. State, No. 08-19-00048-

CR, 2019 WL 698025, at *1 (Tex. App.—El Paso Feb. 20, 2019, no pet.) (mem. op., not designated

for publication) (“The courts of appeal do not have jurisdiction to review interlocutory orders

unless that jurisdiction has been expressly granted by law.”).

Muhammad also appears to claim that Rule 27.1 of the Texas Rules of Appellate Procedure

grants jurisdiction over this case because his notice of appeal is merely premature. Even if we

assume, without deciding, that an Anti-SLAPP motion may be brought in a habeas proceeding of

3 this nature, we conclude that Muhammad’s appeal is thwarted by another jurisdictional deficiency.

That is, a premature notice of appeal in a criminal case is deemed effective only after “the

appealable order is signed by the trial court . . . .” TEX. R. APP. P. 27.1(b); see also Aranda v.

District Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (“Instead, we have said that when a

person is confined for violating a criminal statute and files an application for a writ of habeas

corpus challenging his confinement, the proceeding is criminal, not civil, in nature.”). And there

is no order here. Consequently, the Court does not currently have jurisdiction over this appeal. See

State v. Castillo, No. 07-22-00195-CR, 2023 WL 2267268, at *1 (Tex. App.—Amarillo Feb. 28,

2023, no pet.) (mem. op., not designated for publication) (per curiam) (dismissing the State’s

interlocutory appeal for lack of jurisdiction when the notice of appeal was filed before the trial

court issued a signed, appealable order).

CONCLUSION

Accordingly, we dismiss Muhammad’s attempted appeal for lack of jurisdiction.

GINA M. PALAFOX, Justice

March 27, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)