Marcus Tyrone Grant v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 14, 2021
• Docket: 01-21-00340-CR
• Status: Published

Opinion

Opinion issued October 14, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-21-00340-CR ——————————— MARCUS TYRONE GRANT, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 506th District Court Waller County, Texas Trial Court Case No. 20-12-17503

MEMORANDUM OPINION

Appellant, Marcus Tyrone Grant, acting pro se, is attempting to appeal the

trial court’s order revoking his bond and the trial court’s judgment finding him

incompetent to stand trial and temporarily committing him to a mental health

facility. We dismiss the appeal for lack of jurisdiction.

Background

Although the indictment is not in the record, the record reflects that Grant has

been charged with the offenses of terroristic threat against a peace officer and

obstruction or retaliation. On March 2, 2021, the trial court signed an order granting

the State’s motion to revoke Grant’s bond. That same day, on its own motion, the

trial court ordered an examination of Grant to determine his competency to stand

trial. See TEX. CODE CRIM. PROC. art. 46B.004, 46B.005(a) On June 9, 2021, the

issue of Grant’s competency was tried to the bench, and the trial court found that

Grant was incompetent to stand trial. See id. art. 46B.051(b).

On June 16, 2021, Grant filed a notice of appeal, seeking to appeal the March

2 order revoking his bond. Although the trial court had not yet signed an order related

to its incompetency finding, Grant also filed a separate notice of appeal, complaining

that the trial court had denied him due process at the June 9 competency hearing and

requesting that the trial court’s oral finding of incompetency be “reversed.” On June

23, 2021, the trial court signed a judgment finding Grant incompetent to stand trial

and ordering him committed to a mental health facility “for a period not to exceed

120 days for further examination and treatment toward the specific objective of

attaining competency to stand trial.” See id. art. 46B.055, 46B.071(a)(2)(B),

46B.073(b)(2).

2 Jurisdiction

The right to appeal in criminal cases is conferred by statute, and a party may

appeal only from a judgment of conviction or an interlocutory order as authorized

by statute. See TEX. CODE CRIM. PROC. art. 44.02; Ragston v. State, 424 S.W.3d 49,

52 (Tex. Crim. App. 2014). A court of appeals does not have jurisdiction to review

an interlocutory order in a criminal case unless jurisdiction has been expressly

granted by statute. See Ragston v. State, 424 S.W.3d at 52; see also State ex rel.

Lykos v. Fine, 330 S.W.3d 904, 915 (Tex. Crim. App. 2011) (recognizing that

appeals in criminal cases are “permitted only when they are specifically authorized

by statute”).

Here, even though his notice of appeal was filed before the signing of the

temporary commitment judgment, we construe Grant’s notice of appeal regarding

the trial court’s incompetency finding as an effort to appeal the judgment. Despite

Grant’s effort, the trial court’s judgment finding appellant incompetent and

temporarily committing him to a mental health facility for competency restoration is

not a judgment of conviction. Further, there is no statutory provision allowing an

interlocutory appeal from such an order. See TEX. CODE CRIM. PROC. art. 46B.011

(“Neither the state nor the defendant is entitled to make an interlocutory appeal

relating to a determination or ruling under Article 46B.005.”); Queen v. State, 212

S.W.3d 619, 623 (Tex. App.—Austin 2006, no pet.) (dismissing appeal of temporary

3 commitment order issued after initial finding of incompetence under article

46B.055); Ortega v. State, 82 S.W.3d 748, 749 (Tex. App.—Houston [1st Dist.]

2002, no pet.) (“[A] finding that a criminal defendant is incompetent to stand trial is

. . . not directly appealable.”); see also Annis v. State, No. 01-19-00385-CR, 2019

WL 3819553, at *1 (Tex. App.—Houston [1st Dist.] Aug. 15, 2019, no pet.) (mem.

op., not designated for publication) (dismissing appeal of temporary commitment

order).

Grant also attempts to appeal the trial court’s order revoking his bond.1

However, an order revoking a defendant’s bond is not an order from which the Texas

Legislature has authorized an appeal. See Wright v. State, 969 S.W.2d 588, 589 (Tex.

App.—Dallas 1998, no pet.) (holding that defendant may not appeal pretrial order

revoking bond); Daley v. State, No. 07-10-00200-CR, 2010 WL 3895695, at *2

(Tex. App.—Amarillo Sept. 29, 2010, no pet.) (mem. op., not designated for

publication) (dismissing appeal of order revoking bond for lack of jurisdiction); see

also Ragston, 424 S.W.3d at 52 (“There is no constitutional or statutory authority

granting the courts of appeals jurisdiction to hear interlocutory appeals regarding

excessive bail or the denial of bail.”).

1 We note that Grant is not appealing from a denial of a pretrial application for writ of habeas corpus relating to his bond. 4 Conclusion

Because the orders Grant seeks to appeal are not appealable orders, we dismiss

this appeal for lack of jurisdiction.2 See TEX. R. APP. P. 43.2(f). All pending motions

are dismissed as moot.

PER CURIAM

Panel consists of Justices Kelly, Hightower, and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).

2 We also note that Grant has appointed trial counsel. A criminal defendant is not entitled to hybrid representation. See Patrick v. State, 906 S.W.2d 481, 498 (Tex. Crim. App. 1995); Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981). Thus, Grant’s pro se appeal from the trial court’s orders presents “nothing” for our review. See Patrick, 906 S.W.2d at 498; see also In re Scott, No. 01-20-00793-CR, 2020 WL 7062319, at *1 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, orig. proceeding) (mem. op., not designated for publication) (defendant not entitled to hybrid representation in trial court or in appellate court and pro se filing in appellate court presented “nothing for this Court to review”). Grant’s appeal must be dismissed. See Ex parte Nicholson, No. 01-20-00751-CR, 2021 WL 497240, at *4 n.12 (Tex. App.—Houston [1st Dist.] Feb. 11, 2021, no pet.) (mem. op., not designated for publication). 5