Phillip "Baby Shark" Scott v. Comal County Magistrate Andrew Leonie

• Court: Court of Appeals of Texas
• Decided: April 7, 2023
• Docket: 03-22-00820-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00820-CV

Phillip “Baby Shark” Scott, Appellant

v.

Comal County Magistrate Andrew Leonie, Appellee

FROM THE COUNTY COURT OF COMAL COUNTY

MEMORANDUM OPINION

Phillip “Baby Shark” Scott filed a notice of appeal on December 19, 2022,

purporting to appeal from a proceeding before Comal County Magistrate Andrew Leonie and

seeking as relief dismissal of alleged pending criminal charges against him. However, the notice

of appeal does not identify a final and appealable order or judgment from which Scott is seeking

relief. See Tex. R. App. P. 25.1 (stating required contents of notice of appeal); see also Tex. Civ.

Prac. & Rem. Code § 51.012 (authorizing appeal “from a final judgment of the district or county

court”); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (explaining that appeal

generally may only be taken from final judgment that disposes of all pending parties and claims

in record unless statute provides for interlocutory appeal). On March 22, 2023, the Clerk of this

Court sent notice to Scott asking him to explain how this Court may exercise jurisdiction over

this appeal and warning him that failure to respond may result in the dismissal of this appeal. Scott’s response was due on or before April 3, 2023. To date, no response has been filed, and we

must conclude that we do not have jurisdiction over this appeal.

To the extent that Scott’s filing could be construed as an application for writ of

habeas corpus rather than a notice of appeal, we would be unable to provide the requested relief.

This Court does not have original habeas-corpus jurisdiction in criminal cases. See Tex. Const.

art. V, § 6 addressing original and appellate jurisdiction of appellate courts); Tex. Gov’t Code

§ 22.221(d) (authorizing habeas-corpus jurisdiction for intermediate appellate courts where

person’s liberty is restrained “by virtue of order, process, or commitment issued by” court or

judge in civil case); see also Tex. Code Crim. Proc. art. 11.05 (vesting “power to issue the writ

of habeas corpus” in “[t]he Court of Criminal Appeals, the District Courts, the County Courts, or

any Judge of said Courts”). “As an intermediate appellate court, our habeas-corpus jurisdiction

in criminal matters is appellate only.” See Scott v. District Courts of Comal Cnty,

No. 03-22-00783-CV, 2023 WL 2334975, at *1 (Tex. App.—Austin Mar. 3, 2023, no pet. h.)

(mem. op.) (quoting In re Wilkins, No. 03-20-00381-CV, 2020 WL 5608486, at *1 (Tex. App.—

Austin Sept. 17, 2020, orig. proceeding) (mem. op.)).

Similarly, to the extent that Smith’s filing could be viewed as a petition for writ of

mandamus, he would not be entitled to his requested relief. “To be entitled to relief, Smith has

the burden of providing this Court ‘with a sufficient petition and record to establish his right to

mandamus relief.’” See id. (quoting In re Martin, No. 13-10-00336-CR, 2010 WL 2643086, at

*1 (Tex. App.—Austin June 25, 2010, orig. proceeding) (mem. op., not designated for

publication)). Smith was required to file an appendix containing, among other things, “a

certified or sworn copy of any order complained of, or any other document showing the matter

complained of.” Tex. R. App. P. 52.3(k). Further, Smith was required to file a record containing

2 sworn copies “of every document that is material to [his] claim for relief and that was filed in

any underlying proceeding.” Id. R. 52.7(a). Smith has failed to meet these requirements and,

therefore, failed to provide a petition and record that are sufficient to establish his right to the

requested relief. See Scott, 2023 WL 2334975, at *1.

For these reasons, we dismiss the appeal for want of jurisdiction. See Tex. R.

App. P. 42.3(a), (c).

__________________________________________ Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Dismissed for Want of Jurisdiction

Filed: April 7, 2023