Riley v. State

Court of Appeals of Texas

Riley v. State

760 S.W.2d 765, 1988 Tex. App. LEXIS 3118, 1988 WL 134480

CourtCourt of Appeals of Texas

DecidedNovember 2, 1988

DocketNos. 09-88-116 CR, 09-88-241 to 09-88-244 CR

StatusPublished

This text of 760 S.W.2d 765 (Riley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Riley v. State, 760 S.W.2d 765, 1988 Tex. App. LEXIS 3118, 1988 WL 134480 (Tex. Ct. App. 1988).

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OPINION

BURGESS, Justice.

Appellant was convicted of possession of a controlled substance on a plea of guilty and was sentenced to seven years’ confinement in the Texas Department of Corrections. Pursuant to a plea bargain agreement, the state dismissed four other pending cases against appellant. Appellant then filed pro se two identical applications for writ of habeas corpus which were summarily denied by the court below March 3 and March 10, 1988. Appellant filed a notice of appeal from “the decision of My Pro-se Writ of Habeas Corpus application that was denied 3/10/88.”

It is well settled that no appeal lies from the denial of an application for writ of habeas corpus which the trial court refuses to hear, Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983) and Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App.1981), unless the writ involves a claim of double jeopardy, Ex parte Tarver, 725 S.W.2d 195, 196 (Tex.Crim.App.1986). Appellant’s application does not involve such a claim; therefore, no appeal lies. Ex parte Reese, 666 S.W.2d 675 (Tex.App.—Fort Worth 1984, pet. ref'd).

The dissent wants to reach the merits of each individual case while recognizing the holding in Ex parte Noe, 646 S.W.2d 230 (Tex.Crim.App.1983). This is patently wrong.

The dissent has been perhaps unwittingly led into its position because of the posture of the record in this court. For some reason, these applications for writs of ha-beas corpus are assigned the same docket number below as that of the substantive case. This is to say they are treated as a pleading within that case. When the application is not considered by the trial judge, then portions of the substantive criminal matter are included in the transcript of the purported appeal of the application for writ of habeas corpus. The application for writ of habeas corpus is a separate legal matter. It should, in my opinion, be docketed sepa[766]*766rately. Consequently, the record here would not contain matters having to do with the substantive criminal matter and thus invite review of that record by the dissenter.

The dissent places some significance on this court’s prior order wherein we ordered the district clerk to prepare and forward a transcript. That order was concerned with the timeliness of the notice of appeal. While we ordered the district clerk to prepare a transcript, we did not order that the transcript contain all the instruments of the underlying cases.

Quite simply, this court has no jurisdiction and the appeal is dismissed.

Dismissed for Want of Jurisdiction.

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OPINION

BURGESS, Justice.

Appellant was convicted of possession of a controlled substance on a plea of guilty and was sentenced to seven years’ confinement in the Texas Department of Corrections. Pursuant to a plea bargain agreement, the state dismissed four other pending cases against appellant. Appellant then filed pro se two identical applications for writ of habeas corpus which were summarily denied by the court below March 3 and March 10, 1988. Appellant filed a notice of appeal from “the decision of My Pro-se Writ of Habeas Corpus application that was denied 3/10/88.”

It is well settled that no appeal lies from the denial of an application for writ of habeas corpus which the trial court refuses to hear, Ex parte Noe, 646 S.W.2d 230, 231 (Tex.Crim.App.1983) and Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex.Crim.App.1981), unless the writ involves a claim of double jeopardy, Ex parte Tarver, 725 S.W.2d 195, 196 (Tex.Crim.App.1986). Appellant’s application does not involve such a claim; therefore, no appeal lies. Ex parte Reese, 666 S.W.2d 675 (Tex.App.—Fort Worth 1984, pet. ref'd).

The dissent wants to reach the merits of each individual case while recognizing the holding in Ex parte Noe, 646 S.W.2d 230 (Tex.Crim.App.1983). This is patently wrong.

The dissent has been perhaps unwittingly led into its position because of the posture of the record in this court. For some reason, these applications for writs of ha-beas corpus are assigned the same docket number below as that of the substantive case. This is to say they are treated as a pleading within that case. When the application is not considered by the trial judge, then portions of the substantive criminal matter are included in the transcript of the purported appeal of the application for writ of habeas corpus. The application for writ of habeas corpus is a separate legal matter. It should, in my opinion, be docketed sepa[766]*766rately. Consequently, the record here would not contain matters having to do with the substantive criminal matter and thus invite review of that record by the dissenter.

The dissent places some significance on this court’s prior order wherein we ordered the district clerk to prepare and forward a transcript. That order was concerned with the timeliness of the notice of appeal. While we ordered the district clerk to prepare a transcript, we did not order that the transcript contain all the instruments of the underlying cases.

Quite simply, this court has no jurisdiction and the appeal is dismissed.

Dismissed for Want of Jurisdiction.

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760 S.W.2d 765, 1988 Tex. App. LEXIS 3118, 1988 WL 134480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-texapp-1988.

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