Michael Wayne Osborne v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00173-CR
__________________
MICHAEL WAYNE OSBORNE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 19-31505
__________________________________________________________________
MEMORANDUM OPINION
In response to a motion for rehearing filed by appellant, Michael Wayne
Osborne, we withdraw our opinion of August 7, 2019, and substitute the following
in its place.
On June 5, 2019, we notified the parties that our jurisdiction was not apparent
from the notice of appeal and warned that the appeal would be dismissed for want
of jurisdiction unless we received a response showing grounds for continuing the
1
appeal. Appellant filed a response, but he failed to articulate a valid basis for
jurisdiction in that response. With his motion for rehearing, Osborne provided a copy
of an order, in which the trial judge stated that Osborne’s pro se “motion seeking
habeas corpus relief” was denied and set the case for trial on September 30, 2019.
The record before us does not establish that the trial court ruled on the
underlying merits of Osborne’s pro se motion seeking habeas relief. The trial court
did not issue a writ of habeas corpus, nor did the trial court conduct an evidentiary
hearing on the application for the writ. In addition, Osborne did not provide
argument or authorities permitting this Court to exercise appellate jurisdiction over
an interlocutory order. Osborne has failed to demonstrate that the trial court has
signed an order that is appealable at this time. See Ex parte Hargett, 819 S.W.2d
866, 868 (Tex. Crim. App. 1991), superseded in part by statute, Tex. Code Crim.
Proc. Ann. art. 11.072 (West 2015) (holding that no appeal lies from the refusal to
issue a writ of habeas corpus unless the trial court rules on the merits of the
application); Ex parte Young, 257 S.W.3d 276, 277 (Tex. App.—Beaumont 2008,
no pet.); see also McKown v. State, 915 S.W.2d 160, 161 (Tex. App.—Fort Worth
1996, no pet.) (holding that intermediate appellate courts lack jurisdiction to review
interlocutory orders unless such jurisdiction is expressly granted by statute).
Accordingly, we dismiss the appeal for want of jurisdiction.
2
APPEAL DISMISSED.
_________________________
HOLLIS HORTON
Justice
Submitted on August 6, 2019
Opinion Delivered August 28, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
3