Ex Parte Noe

646 S.W.2d 230, 1983 Tex. Crim. App. LEXIS 942

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 1983
• Docket: 978-82
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Supposedly the appellant “appealed” from the denial of the issuance of a writ of habeas corpus. Apparently appellant had been ordered remanded to custody for the purpose of extradition in a habeas corpus proceeding. An appeal was taken. Subsequently appellant filed another application for writ of habeas corpus seeking the setting of bail by the trial court pending appeal of the extradition order. The application was denied.

On “appeal” from this latter action, the San Antonio Court of Appeals noted the pending of an appeal from the earlier extradition order in their cause no. 04-82-00105-CR. Then, in a brief opinion, that court stated the “record” showed that after appellant’s arrest on unrelated charges he was found to be a fugitive from the State of Mississippi where he had been convicted of felony charges. Relief was denied on the basis that there is no right to bail pending appeal of an extradition order if the demanded individual has been convicted in the demanding state.

Appellant’s petition for discretionary review was granted.

While the Court of Appeals may have turned for facts to the record before that court on appeal from the extradition order in their cause no. 04-82-00105-CR, that record is not before this court.

There is not in the record an application for writ of habeas corpus seeking the setting of bail, no answer by the State, if any, and no written order of the court in connection with said application. There is no docket sheet, not even a clerk’s transcription of any description. In fact, the only trial record is the transcription of the court reporter’s notes from a proceeding in “a ... writ” in trial court cause no. 82-W0059. After a colloquy between the court and attorneys, including the citation of cases, the trial judge stated, “... and I will deny your new application for writ .... ”

It is obvious from the record that the court refused to issue or grant the writ of habeas corpus.¹ Further, there is no notice of appeal in this record.

There is no appeal from a refusal to issue or grant a writ of habeas corpus even after a hearing. Ex parte Moorehouse, 614 S.W.2d 450 (Tex.Cr.App.1981); Ex parte Hughes, 20 S.W.2d 1070 (Tex.Cr.App.1929); Ex parte Smith, 85 Tex.Cr.R. 649, 215 S.W. 299 (Tex.Cr.App.1919); Ex parte Blankenship, 57 S.W. 646, 647 (Tex.Cr.App.1900). Article 44.34, V.A.C.C.P., note 5. The appellate courts do not have jurisdiction in such a situation. Ex parte Nichlos, 245 S.W .2d 704 (Tex.Cr.App.1952). See also Ex parte Wade, 147 Tex.Cr.R. 94, 178 S.W.2d 690 (Tex.Cr.App.1944).

Even if it could be argued that this proceeding was appealable, neither this court nor the Court of Appeals has jurisdiction where no notice of appeal is given and there is no showing of good cause for the absence of such notice. Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976); Ex parte Weston, 556 S.W.2d 347 (Tex.Cr.App.1977); White v. State, 629 S.W.2d 262 (Tex.Cr.App.1982). See also Ex parte Sharp, 104 Tex.Cr.R. 563, 285 S.W. 1090 (Tex.Cr.App.1926); Ex parte Francis, 91 Tex.Cr.R. 398, 239 S.W. 957 (Tex.Cr.App.1922); Ex parte Cates, 89 Tex.Cr.R. 504, 231 S.W. 396 (Tex.Cr.App.1921).

It has now been made to appear that the order remanding appellant for extradition in cause no. 04-82-00105-CR in the San Antonio Court of Appeals was affirmed on January 26, 1983 and a motion for rehearing has not been filed. The question of bail pending appeal in said cause is now moot under any circumstances.

The judgment of the Court of Appeals is reversed and the appeal is dismissed.

ODOM, J., concurs in the dismissal.

1 . We are not dealing with a case where the trial court, after the filing of a habeas corpus application, grants or issues the writ of habeas corpus, and after a hearing, grants or denies relief.