State v. Fowler

97 S.W.3d 721, 2003 Tex. App. LEXIS 153, 2003 WL 76807

• Court: Court of Appeals of Texas
• Decided: January 8, 2003
• Docket: 10-02-273-CR
• Status: Published

Opinions

OPINION

REX D. DAVIS, Chief Justice.

Racheal Fowler filed an application for writ of habeas corpus in the district court contending that her arrest warrant was not supported by probable cause. The court issued the writ and set the matter for hearing. After hearing, the court held that the warrant was not supported by probable cause and ordered Fowler discharged and released from her surety bond. The State appealed.

Generally, the State cannot appeal an adverse ruling in a habeas proceeding. State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 541 (Tex.Crim.App.1991) (orig. proceeding). The State may appeal an adverse habeas ruling if a statute provides for such an appeal. E.g., State v. Young, 810 S.W.2d 221, 223 (Tex.Crim.App.1991) (habeas orders effectively setting aside indictments); State v. Kanapa, 778 S.W.2d 592, 593 (Tex.App.-Houston [1st Dist.] 1989, no pet.) (habeas order modifying judgment).¹

The State may bring an interlocutory appeal from an adverse probable cause determination only when that decision is made in an order granting a motion to suppress evidence. See Tex.Code CRiM. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2003). No other statute provides a basis for this appeal.

Accordingly, we dismiss the State’s appeal for want of jurisdiction.

Justice GRAY concurring.

1 . Article 44.01 of the Code of Criminal Procedure permits the State to appeal (among other things) an order dismissing an indictment or an order modifying a judgment. Tex.Code Crim. Proc. Ann. art. 44.01(a)(1), (2) (Vernon Supp.2003).