Greenville v. State

798 S.W.2d 361, 1990 Tex. App. LEXIS 2778, 1990 WL 179094

• Court: Court of Appeals of Texas
• Decided: September 19, 1990
• Docket: 09-89-220 CR
• Status: Published

Opinions

OPINION

WALKER, Chief Justice.

The record before this Court reflects that on August 22, 1989, the Honorable David Walker presided over a hearing conducted in the 159th District Court of Angelina County, Texas. The hearing was held in order for Judge Walker to consider a Writ of Habeas Corpus previously filed by the appellant. Appellant was present and represented by counsel at the hearing. An assistant district attorney appeared on behalf of the State. Evidence was heard and appellant’s writ was denied on all grounds with the exception that Judge Walker did grant appellant’s request to set bail on two pending felony charges for which appellant had been arrested and for which appellant was confined. At the conclusion of the hearing on August 22, 1989, appellant filed an instrument entitled “Notice of Appeal.” This notice states, in pertinent part:

Comes now James Edward Greenville, Appellant, in Cause No. 12,536-A, on this 22nd day of August, 1989, and files in duplicate this, his Notice of Appeal of and from the judgment rendered this day in the above numbered cause by the 159th Judicial District Court of Angelina County, Texas, to the Ninth Judicial District Court of Appeals in Beaumont, Texas.

The notice appears to have been filed pro se as only appellant’s signature appears at its conclusion. It was offered and filed by appellant in cause number 12,536-A, the cause number assigned to the habeas corpus proceeding.

Appellant’s Brief on appeal begins with the following language:

“TO THE HONORABLE COURT OF APPEALS:

Appellant, Jerry Edward Greenville, Defendant in Cause No. 12,536, in the 217th Judicial District Court of Texas, David V. Wilson presiding, respectfully submits this Brief for the purposes of appealing his revocation of probation and sentence of ten years in the Texas Department of Corrections.” The record reflects that the “revocation” appellant refers to in his brief occurred on March 10, 1986. On that day, the trial court proceeded with adjudication, found appellant guilty, and sentenced appellant to ten (10) years in the Texas Department of Corrections. The revocation order was signed on March 11, 1986. Appellant filed a notice of appeal on March 26, 1986. On November 9, 1988, this Ninth Court of Appeals issued an order dismissing appellant’s appeal for want of jurisdiction. Essentially, the order stated that since appellant was sentenced in open court on March 10, 1986, and did not file his notice of appeal until March 26, 1986, and since no motion for new trial was filed, and since former article 44.08(b) and (c) of the TEX.CODE CRIM.P. required that notice of appeal be filed within fifteen (15) days after the date sentence is imposed or suspended in open court, then this Court lacked jurisdiction to entertain appellant’s appeal. Appellant’s brief in the instant case seems to completely disregard our order of November 9, 1988 and attempts to recomplain about the adjudication proceeding of March 10, 1986. Appellant’s Notice of Appeal in the instant case, however, refers only to Judge Walker’s order denying appellant relief in the habeas corpus action. With every intent to give full force and effect to our order of November 9, 1988, we regard the instant case as an appeal solely from Judge David Walker’s denial of appellant’s Writ of Habeas Corpus.

Having placed this appeal in its proper context, we now examine appellant’s points of error. In brief, appellant’s three points of error complain of trial court error during his adjudication proceeding of March 10, 1986. Specifically, appellant complains of sufficiency of the evidence, a variance in the State’s pleadings and proof, and trial court jurisdiction. In carefully examining the statement of facts from the August 22, 1989 Habeas Corpus hearing, we find none of these three complaints raised before Judge Walker. Neither did appellant raise such grounds in his petition for habeas corpus relief. Appellant has, therefore, presented us with nothing for review. TEX.R.APP.PROC. 52(a). As for our ability to rule on issues raised to us for the first time via habeas corpus, TEX. CODE CRIM.PROC.ANN. art. 11.05 specifically omits the various Texas Courts of Appeals from the list of courts empowered to issue or grant a writ of habeas corpus. Our jurisdiction, therefore, is strictly appellate, and to rule upon issues raised to us for the first time would place us in the position of exercising original jurisdiction, a position that art. 11.05 indicates we do not have. Furthermore, the Court of Criminal Appeals, in Ex Parte Russell, 720 S.W.2d 477, 487 (Tex.Crim.App.1986), stated, “It is well established that in habeas corpus proceedings the burden of proof is upon the applicant and includes the burden of proving his factual allegations.” See Ex Parte Salinas, 660 S.W.2d 97 (Tex.Crim.App.1983); Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982), cert. den. 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Ex Parte Alexander, 598 S.W.2d 308 (Tex.Crim.App.1980); Ex Parte Sanders, 588 S.W.2d 383 (Tex.Crim.App.1979). Since we are without original jurisdiction to consider the complaints appellant raises in his brief but not raised in the habeas corpus hearing below, appellant presents us with nothing for review. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.