Ex Parte Cedric Joseph Marks

• Court: Court of Appeals of Texas
• Decided: November 16, 2022
• Docket: 07-22-00219-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00219-CR

EX PARTE CEDRIC JOSEPH MARKS

On Appeal from the 426th District Court Bell County, Texas Trial Court No. 80244, Honorable Steven J. Duskie, Presiding

November 16, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

This one proceeding involves Cedric Marks’s pro se effort to appeal an

interlocutory order and petition for a writ of habeas corpus. The underlying complaints

implicate the trial court’s decision to deny his request to dismiss the criminal prosecution

against him on speedy trial grounds or, in the alternative, to reduce bail. We dismiss in

part for want of jurisdiction and affirm. 1

The State indicted Marks for capital murder. That resulted in his arrest. He

currently awaits trial and remains incarcerated.

1 This appeal being transferred from the Third Court of Appeals, we follow its precedent if it conflicts with that of the Seventh Court of Appeals. TEX. R. APP. P. 41.3. Though originally appointed counsel, he opted to represent himself against the

State’s accusations. His time awaiting trial while jailed led him to question both the

purported delay in obtaining a trial and the $1.5 million bail set by the trial court. Efforts

to raise his complaints came in various forms over a period of time. Eventually, they

morphed into one pretrial petition for writ of habeas corpus. Through it, he sought the

dismissal of the indictment because the State purportedly denied him the right to a speedy

trial or, alternatively, a reduction in bail. The trial court heard the petition and denied both

requests after receiving evidence.

Before us is Marks’s combined interlocutory appeal and petition for writ of habeas

corpus challenging the trial court’s rulings. Not being sure whether he actually appeals

them or originally petitions for a writ of habeas corpus, we address his complaints within

the framework of both possibilities.

Speedy Trial

Regarding the matter of dismissal, neither an interlocutory appeal nor a writ for

habeas corpus are available to test a decision rejecting a speedy trial complaint. As said

by our Court of Criminal Appeals, “[t]his Court will not allow its holding to deny

interlocutory appeals from alleged violations of the Speedy Trial Act to be circumvented

by changing the label of an appeal from an application for a writ of mandamus to that of

a petition for habeas corpus.” Ex parte Delbert, 582 S.W.2d 145, 146 (Tex. Crim. App.

1979); accord, Battee v. State, No. 11-22-00088-CR, 2022 Tex. App. LEXIS 3402, at *1

(Tex. App.—Eastland May 19, 2022, no pet.) (mem. op., not designated for publication)

(holding that an appeal from an order denying a motion for speedy trial is not a final,

2 appealable order). Thus, we have no jurisdiction to review, at this time, the decision

regarding Marks’s speedy trial complaint.

Bail

As for bail, the amount of bail may be challenged through a pretrial writ of habeas

corpus. Weise v. State, 55 S.W.3d 617, 619–20 (Tex. Crim. App. 2001). Should the trial

court deny relief, that decision may be the substance of an interlocutory appeal. Diez v.

State, No. 03-21-00043-CR, 2022 Tex. App. LEXIS 2809, at *5 n.2 (Tex. App.—Austin

Apr. 28, 2022, no pet.) (mem. op., not designated for publication). Such a legal remedy

being available, though, an original petition for writ of habeas corpus filed in an appellate

court seeking review of the decision is unavailable. See Ex parte Cruzata, 220 S.W.3d

518, 520 (Tex. Crim. App. 2007) (stating that since habeas corpus is an extraordinary

remedy available only when there is no other adequate remedy at law, it may not be used

to assert claims that could have been asserted on direct appeal). Thus, we have no

jurisdiction over Marks’s original petition for writ of habeas corpus to the extent he uses it

to attack the trial court’s refusal to reduce bail.

Having jurisdiction over his appeal, we, nevertheless, encounter another problem.

Bail and its purported excessiveness were the subject of various evidentiary hearings.

Furthermore, the trial court took judicial notice of the evidence received in an earlier

hearing when opting to deny Marks’s later pretrial writ. Marks did not include that

evidence in the current appellate record. This is fatal to his appeal.

Simply put, an appellant has the burden to present a record showing reversible

error. Amador v. State, 221 S.W.3d 666, 679 (Tex. Crim. App. 2007). That burden goes

unfulfilled when he omits from it relevant portions of the trial court proceedings. Id.

3 Indeed, the omission of relevant evidence from the record allows us to presume that the

missing evidence supports the decision under attack. Morris v. Coffman, 01-09-00493-

CV, 2012 Tex. App. LEXIS 9315, at *8–9 (Tex. App.—Houston [1st Dist.] Nov. 1, 2012,

no pet.) (mem. op.). We so presume here. That is, we presume the evidence missing

from the appellate record supported the trial court’s decision to deny a reduction in bail.

In sum, we dismiss, for want of jurisdiction, Marks’s original petition for writ of

habeas corpus and interlocutory appeal from the order rejecting his speedy trial

complaint. We affirm the trial court’s order denying his pretrial writ of habeas corpus to

the extent he used that extraordinary remedy to seek a reduction in his bail.

Brian Quinn Chief Justice

Do not publish.