Opinion
No. 08-16-00168-CR
09-21-2016
IN RE: JOSE VIZCAINO
Appeal from the 394th District Court of Presidio County, Texas (TC# 7702) OPINION
Appellant, Jose Vizcaino, is attempting to appeal from an order of the trial court dismissing a petition for writ of mandamus. We dismiss the appeal for lack of jurisdiction.
FACTUAL SUMMARY
Vizcaino was charged with the offense of speeding in Presidio County, Texas. On April 14, 2016, he appeared before the Justice Court of Presidio County, Precinct 2, and entered a plea of nolo contendere. According to Vizcaino, he timely filed a notice of appeal and appeal bond, and the Justice Court certified the appeal to the Presidio County Court, but the Justice Court later informed counsel that it would not accept the surety appearance bond. Vizcaino sought to challenge the Justice Court's refusal to approve the bond and certify the appeal to the county court by filing a petition for writ of mandamus in the 394th District Court of Presidio County. The District Court concluded that it did not have jurisdiction to issue the writ of mandamus and dismissed the petition. Vizcaino filed notice of appeal to this Court.
The case was styled The State of Texas v. Jose Manuel Vizcaino, cause number 2015-120006.
Vizcaino's petition generally cited Articles 11.01 and 11.05 of the Texas Code of Criminal Procedure, which pertain to the writ of habeas corpus, but he did request that the trial court grant him habeas corpus relief. See TEX.CODE CRIM.PROC.ANN. arts. 11.01, 11.05 (West 2015). --------
JURISDICTION
After reviewing the notice of appeal and the District Court's order dismissing Vizcaino's application for writ of mandamus, the Court notified Vizcaino that it appeared that we lack jurisdiction of the appeal because there is no final judgment or appealable order, and we gave him notice of our intent to dismiss the appeal unless he could show grounds for continuing the appeal. Vizcaino filed a written response.
The courts of appeals derive their authority and jurisdiction from Article V, section 6 of the Texas Constitution, which provides:
Said Court of Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. [Emphasis added].TEX.CONST. Article V, section 6(a). Thus, we must determine whether jurisdiction has been expressly given to the courts of appeals in a statute. For this reason, the standard for determining appellate jurisdiction in a criminal case is not whether the appeal is precluded by law, but whether the appeal is expressly authorized by law. Ragston v. State, 424 S.W.3d 49, 52 (Tex.Crim.App. 2014); Abbott v. State, 271 S.W.3d 694, 696-97 (Tex.Crim.App. 2008).
It is well established that a district court's ruling on a mandamus petition filed in a civil case can be appealed to a court of appeals. See Brazos River Conservation and Reclamation District v. Belcher, 163 S.W.2d 183, 184 (Tex. 1942); Sheppard v. Thomas, 101 S.W.3d 577, 581-82 (Tex.App.--Houston [1st Dist.] 2003, pet. denied). The basis for this jurisdiction can be found in Section 22.220 of the Texas Government Code which establishes a court of appeals' civil appellate jurisdiction. TEX.GOV'T CODE ANN. § 22.220(a). This statute provides, in pertinent part, that:
Each court of appeals has appellate jurisdiction of all civil cases within its district of which the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $250, exclusive of interest and costs.TEX.GOV'T CODE ANN. § 22.220(a)(West Supp. 2016). Section 22.220(a) provides a broad grant of appellate jurisdiction in civil cases to the courts of appeals, but it does not address appellate jurisdiction of criminal cases. Consequently, we must look to other statutes to determine whether Vizcaino has a right to appeal the District Court's order dismissing his petition for writ of mandamus.
Under Article 44.02 of the Texas Code of Criminal Procedure, a defendant in a criminal case has the right to appeal a final judgment of conviction. See TEX.CODE CRIM.PROC.ANN. art. 44.02 (West 2006)("A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed . . . ."); TEX.R.APP.P. 25.2(a)(2)("A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules."); State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex.Crim.App. 1990)(observing that defendant's general right to appeal under Article 44.02 has always been limited to appeal from a final judgment). Article 44.02 does not confer jurisdiction on a court of appeals to review a district court's ruling on a petition for writ of mandamus filed in connection with a criminal case. Further, we have found no other statute authorizing Vizcaino's appeal from this order.
Citing State v. Garrett, 824 S.W.2d 181, 183 (Tex.Crim.App. 1992), Vizcaino first argues that the district court's dismissal of the mandamus action is an appealable order because it effectively terminated the criminal action. The issue in Garrett was whether the State had a right to appeal the trial court's order setting aside indictment which alleged three theories as to how defendant delivered cocaine, despite the defendant's contention that the motion to set aside the indictment was, in essence, a motion to compel the State to elect its theory of prosecution before trial. Garrett, 824 S.W.2d at 183. Under Article 44.01, the State has a right to appeal an order of a court that dismisses an indictment, information or complaint. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a)(1)(West Supp. 2016). The Court of Criminal Appeals concluded that the State had a right to appeal the trial court's order under Article 44.01(a)(1) because it effectively terminated the criminal action. Garrett, 824 S.W.2d at 183. Garrett does not stand for the proposition that the criminal defendant is entitled to appeal an order dismissing a petition for writ of mandamus. Further Article 44.01(a)(1) is inapplicable to Vizcaino's appeal.
Vizcaino next analogizes his appeal to one from an order denying a pretrial writ of habeas corpus application. He cites the Court of Criminal Appeals' decision in Ex parte Robinson, 641 S.W.2d 552 (Tex.Crim.App. 1982) and our decision in Ex parte Woodall, 154 S.W.3d 698 (Tex.App.--El Paso 2004, pet. ref'd) in support of his argument. One of the issues in Robinson was whether the defendant had a right to appeal the denial of his pretrial habeas corpus application raising double jeopardy as a bar to prosecution. Ex parte Robinson, 641 S.W.2d at 555. The Court of Criminal Appeals concluded that he did based on former article 44.34 of the Code of Criminal Procedure. Id. Article 44.34 was repealed effective September 1, 1986. Acts 1985, 69th Leg., R.S., ch. 685, § 4, 1985 TEX.GEN.LAWS 2472, 2473. Article 44.34 became former Rule 44 of the Texas Rules of Appellate Procedure, and it is now Rule 31. Rule 31 sets forth the procedures to be followed in appeals from a judgment or order granting or denying relief in a habeas corpus or bail proceeding. See TEX.R.APP.P. 31.1. Robinson is distinguishable because Vizcaino did not file a pretrial writ of habeas corpus application raising double jeopardy.
In Ex parte Woodall, the defendant was charged with violating the City of El Paso's anti-smoking ordinance. Ex parte Woodall, 154 S.W.3d at 700. She filed a pretrial writ of habeas corpus application in the district court challenging the constitutionality of the anti-smoking ordinance. Id. The district court denied relief and Woodall appealed. Id. Our decision in Woodall addressed whether Woodall's various challenges to the statute were cognizable in a pretrial habeas corpus petition. Ex parte Woodall, 154 S.W.3d at 700-02. We did not expressly address whether Woodall had a right to appeal the district court's order denying habeas relief. To the extent we based our exercise of jurisdiction on Rule 31, the Court of Criminal Appeals decision in Ragston v. State, 424 S.W.3d 49 (Tex.Crim.App. 2014) dispenses with the notion that Rule 31 confers jurisdiction on a court of appeals to hear appeals from habeas and bail proceedings. The Court of Criminal Appeals held that courts of appeals do not have jurisdiction to consider an interlocutory appeal from the denial of the defendant's pretrial bond reduction motion. Ragston, 424 S.W.3d at 52. Rule 31 provides procedures which must be followed by litigants in order to invoke the jurisdiction of the courts of appeals, but it does not confer jurisdiction on a court of appeals to hear an appeal from habeas corpus or bail proceedings. See Ragston, 424 S.W.3d at 52. In order for a court of appeals to have jurisdiction to hear an appeal in a criminal case, there must be constitutional or statutory authority granting the courts of appeals jurisdiction to hear the appeal. See Ragston, 424 S.W.3d at 52.
Vizcaino has not cited, and we have not found, any constitutional or statutory authority giving us jurisdiction of an appeal from a district court's order dismissing a petition for writ of mandamus filed in connection with a criminal case. We note that the Waco Court of Appeals denied mandamus relief because it found that the relator had a right to appeal the district court's denial of his petition for writ of mandamus to compel the justice of the peace to allow the appeal of conviction to go forward without an appeal bond. In re Price, 998 S.W.2d 897 (Tex.App.--Waco 1999, orig. proceeding). Even though the case involved a mandamus filed in connection with a criminal case, the decision cited the Texas Supreme Court's decision in Brazos River Conservation in support of the Court of Appeals' conclusion that the relator had a right to appeal the district court's ruling. Id. at 897. We respectfully disagree with and decline to follow In re Price because a distinction must be drawn between a mandamus proceeding filed in a civil case and one filed in a criminal case. The Waco Court of Appeals' reliance on the Brazos River Conservation decision for its exercise of appellate jurisdiction is misplaced. Because we have found no constitutional or statutory provision authorizing Vizcaino's appeal from the District Court's order dismissing his petition for writ of mandamus filed in connection with a criminal case, we dismiss the appeal for lack of jurisdiction. September 21, 2016
YVONNE T. RODRIGUEZ, Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)