Ex Parte: Marco Antonio Hinojos

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

EX PARTE: MARCO ANTONIO § No. 08-17-00077-CR HINOJOS, § Appeal from the Appellant. § County Criminal Court No. 2

§ of El Paso County, Texas

§ (TC# 2017DCV0406)

§ ORDER

On April 27, 2017, the Court issued an order directing the trial court to enter a

certification of the defendant’s right to appeal in accordance with TEX.R.APP.P. 25.2(a)(2), (d).

Counsel for Appellant has filed a letter challenging the validity of the order. The Court has

construed Appellant’s letter as a motion to reconsider our order.

Without citing any authority, Appellant asserts that Rule 25.2 is inapplicable to this

appeal because a writ of habeas corpus is a civil proceeding. Appellant’s counsel made this

same argument in two other appeals, and the Court rejected the argument in each case. See Ex

parte Tarango, 116 S.W.3d 201, 202 (Tex.App.--El Paso 2003, no pet.); Ex parte Woodall, No.

08-03-00184-CR, 2003 WL 21711397 at *2 (Tex.App.--El Paso July 24, 2003, no pet.)(not

designated for publication). The instant case is indistinguishable from Tarango and Woodall.

Appellant is charged by information with the misdemeanor offense of harassment, and he

1 challenged the constitutionality of the criminal statute by filing a pre-trial application for writ of

habeas corpus pursuant to article 11.09. See TEX.CODE CRIM.PROC.ANN. art. 11.09. Even

though this clearly is a criminal proceeding, the El Paso County Clerk assigned a civil number to

the petition for writ of habeas corpus. This is a longstanding practice of the El Paso County

Clerk and the El Paso County District Clerk, and it is a practice which has repeatedly caused

confusion for appellate practitioners and this Court. Regardless of what designation is assigned

to the writ application by the El Paso County Clerk, we conclude that this is a “criminal action”

within the meaning of Article 44.02 of the Code of Criminal Procedure and a “criminal case”

within the meaning of Rule 25.2(a)(2). Consequently, the trial court must comply with Rule

25.2(d) by entering a certification of Appellant’s right to appeal the order denying habeas corpus

relief. See Ex parte Tarango, 116 S.W.3d at 202; Ex parte Woodall, 2003 WL 21711397 at *2;

see also Ex parte Delgado, No. 08-05-00306-CR, 2005 WL 3333832 (Tex.App.--El Paso

December 8, 2005, no pet.)(dismissing appeal from order denying habeas corpus relief because

record did not include the trial court’s certification of the defendant’s right to appeal).

Appellant’s request to reconsider our order is DENIED.

IT IS SO ORDERED this 4th day of May, 2017.

PER CURIAM

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