Thomas Garbett v. State

• Court: Court of Appeals of Texas
• Decided: April 17, 2019
• Docket: 09-19-00071-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00071-CR __________________

THOMAS GARBETT, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 18-30163 __________________________________________________________________

MEMORANDUM OPINION

The trial court denied appellant Thomas Garbett’s pretrial plea of former

jeopardy and collateral estoppel. Garbett filed an accelerated appeal with this Court.

We questioned our jurisdiction over the appeal. The State filed a response, but

Garbett did not. In its response, the State asserts that in the underlying case, the State

filed an eight-count indictment against Garbett, and after a jury trial, Garbett was

found not guilty of three counts, and the remaining five counts resulted in a mistrial. 1 From the limited record currently before us, it appears that the charges of

which Garbett complains have not yet been litigated. We lack jurisdiction to review

interlocutory orders unless that jurisdiction has been expressly granted by law.

Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991). Although a trial

court may construe a motion asserting double jeopardy as an application for habeas

corpus, intermediate Courts of Appeals may not do so. Ex parte Cantu, 913 S.W.2d

701, 704 (Tex. App.—San Antonio 1995, pet. ref’d). Nothing in the limited record

before us suggests that the trial court treated Garbett’s motion as an application for

writ of habeas corpus. We conclude that the order from which Garbett appeals is

interlocutory, and we therefore lack jurisdiction over the appeal. See Apolinar, 820

S.W.2d at 792; Ex parte Cantu, 913 S.W.2d at 704. Accordingly, the appeal is

dismissed for lack of jurisdiction.

APPEAL DISMISSED.

_________________________ STEVE McKEITHEN Chief Justice

Submitted on April 16, 2019 Opinion Delivered April 17, 2019 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.