Jose Zuniga v. State of Texas
Opinion
V.
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Following this Court's reversal of appellant's conviction and his release on a $50,000 bond, the State filed a petition for discretionary review that was granted. On April 26, 2004, the Court of Criminal Appeals reversed our decision and following the issuance of its mandate on June 17, 2004, remanded the case for further proceedings. On August 2, 2004, pursuant to directions from the higher court, we re-examined appellant's case and issued an opinion affirming his conviction. Shortly thereafter, pursuant to article 44.04(h) of the Texas Code of Criminal Procedure (Vernon Pamph. Supp. 2004-05), the State moved to have appellant's bond revoked and also requested that capias issue for his arrest. We overrule the motion.
Article 44.04(h) provides in pertinent part that following a reversal by a court of appeals, a defendant is entitled to be released on bail pending final determination of an appeal by the state or the defendant on a motion for discretionary review. (Emphasis added). The State relies on this statute, but provides no other authority in support of its position that once mandate was issued by the Court of Criminal Appeals on June 17, a final determination was made on its petition for discretionary review. The State, however, ignores that portion of the statute that also allows appellant to file a petition for discretionary review challenging our opinion of August 2 affirming his conviction and pursuing it to a final determination. Accordingly, the State's motion is overruled.
It is so ordered.
Don H. Reavis
Justice
Do not publish.
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NO. 07-10-0181-CV
NO. 07-10-0182-CV
NO. 07-10-0183-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 22, 2010
______________________________
BENNY JOE PALOMO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NOS. 18,223-B, 18,368-B, & 18,369-B; HONORABLE JOHN B. BOARD, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
On May 5, 2010, Appellant, Benny Joe Palomo, filed notices of appeal challenging the withdrawal notifications entered by the trial court in each referenced cause. By opinion dated May 19, 2010, this Court concluded that no final, appealable orders had been entered and found Appellant's notices of appeal to be premature. Relying on Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the appeals were abated for 180 days to allow Appellant an opportunity to challenge the withdrawals from his inmate account[1] in the trial court and obtain appealable orders.
Generally, an appeal may be taken only from a final judgment or order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The Texas Supreme Court has determined that an Order to Withdraw Inmate Funds, issued pursuant to section 501.014(e) of the Texas Government Code, is not an order; rather, it is a "notification by a court" directing prison officials to withdraw funds for an inmate's account. Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2008). The Court concluded that receipt of a copy of the withdrawal notification (Order to Withdraw Funds) and an opportunity to be heard (Harrell's motion to rescind)[2] satisfied the requirements of due process. Harrell, 286 S.W.3d at 320-21.
Texas appellate courts have jurisdiction only over final orders or judgments unless a statute permits an interlocutory appeal. See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex. 2007). The denial of a motion to modify, correct, or rescind a withdrawal notification is a final, appealable order. See Ramirez v.
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