Ex Parte Roland v. Garces

Opinion

MEMORANDUM OPINION No. 04-11-00015-CR

EX PARTE ROLAND V. GARCES

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2010-CR-12831 Honorable Andrew Carruthers, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Steven C. Hilbig, Justice

Delivered and Filed: June 1, 2011

DISMISSED FOR WANT OF JURISDICTION

Roland V. Garces, proceeding pro se, seeks to appeal the denial of his pre-trial motion to

reduce his $75,000 bail. We dismiss the appeal for lack of jurisdiction.

ANALYSIS

Garces is charged with assault–family violence (second offense), with enhancements

alleging two prior felony assault convictions involving family violence which make him an

habitual offender. Pre-trial bail of $75,000 was set, and Garces moved to reduce the bail amount

based on an affidavit of non-prosecution signed by the complainant, his daughter Eloisa. After

an evidentiary hearing at which Garces’s daughter and mother testified, the court denied

Garces’s motion to reduce his bail. Garces appealed. 04-11-00015-CR

On March 16, 2011, we issued an opinion holding there is no constitutional or statutory

provision that authorizes a direct appeal of an interlocutory order on a motion to reduce bail;

therefore, we lack jurisdiction over such an appeal. Sanchez v. State, No. 04-10-00891-CR, 2011

WL 915589, at *4 (Tex. App.—San Antonio March 16, 2011, no pet.) (citing Abbott v. State,

271 S.W.3d 694, 696-97 (Tex. Crim. App. 2008)); see also Apolinar v. State, 820 S.W.2d 792,

794 (Tex. Crim. App. 1991). We acknowledged that Rule 31 of the Texas Rules of Appellate

Procedure contemplates the filing of a notice of appeal from an order in a bail proceeding, but

recognized that a rule of appellate procedure does not create appellate jurisdiction where none

exists. Sanchez, 2011 WL 915589, at *3 (internal citations omitted). The proper vehicle for a

defendant to challenge excessive bail is a pre-trial application for writ of habeas corpus, which, if

denied, may then be appealed. Id. at *3-4. As in Sanchez, we decline to construe Garces’s

motion to reduce bond as a pre-trial application for writ of habeas corpus. See id. at *4 (record

did not show motion to reduce bond was treated as habeas application by the parties or trial

court).

Accordingly, this appeal is dismissed for lack of jurisdiction. 1 TEX. R. APP. P. 43.2(f).

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1 Although the question of jurisdiction was not briefed by the State, we must determine as a preliminary matter whether we have jurisdiction to decide the merits of an appeal. See State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892, 903 (Tex. Crim. App. 2002).

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