Larry Donnell Hedge v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00181-CR

Larry Donnell Hedge,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 07-03013-CRF-85

MEMORANDUM  Opinion

            Larry Donnell Hedge seeks to appeal from an interlocutory order granting the State’s motion to increase his pretrial bail under Rule of Appellate Procedure 31.  However, this Court has determined that, even though Rule 31 establishes the procedures to be followed in an appeal from an order “in a bail proceeding,” Rule 31 is not a jurisdictional statute, and “[n]o statute vests this Court with jurisdiction over direct appeals of pre-trial bail rulings.”  Benford v. State, 994 S.W.2d 404, 409 (Tex. App.—Waco 1999, no pet.); accord Vargas v. State, 109 S.W.3d 26, 29 (Tex. App.—Amarillo 2003, no pet.); Ex parte Shumake, 953 S.W.2d 842, 844-47 (Tex. App.—Austin 1997, no pet.); see also State v. Riewe, 13 S.W.3d 408, 413 (Tex. Crim. App. 2000) (“our caselaw prevents a court of appeals from using an appellate rule to create jurisdiction where none exists”).  A number of our sister courts disagree, holding that a defendant may appeal from such an order.  See, e.g., Ramos v. State, 89 S.W.3d 122, 125-26 (Tex. App.—Corpus Christi 2002, no pet.); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.—Dallas 1998, no pet.); McKown v. State, 915 S.W.2d 160, 160-61 (Tex. App.—Fort Worth 1996, no pet.); Clark v. Barr, 827 S.W.2d 556, 557 (Tex. App.—Houston [1st Dist.] 1992, orig. proceeding).

            We continue to adhere to our holding in Benford that no statute vests this Court with jurisdiction over an appeal from an interlocutory order granting a motion to increase (or denying a motion to reduce) bail.  Cf. Richardson v. State, 181 S.W.3d 756, 758 (Tex. App.—Waco 2005, no pet.) (interlocutory appeal is permitted from the denial of habeas application challenging the amount of pretrial bail). Accordingly, we dismiss the appeal for want of jurisdiction.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray not participating)*

Appeal dismissed

Opinion delivered and filed July 2, 2008

Do not publish

[CR25]

*           (“Chief Justice Gray does not join the dismissal for want of jurisdiction at this time.  A separate opinion will not issue.  He notes, however, that dismissal for want of jurisdiction is premature.  Dismissal for want of jurisdiction is premature because no motion to dismiss has been filed, and the Court has not given the parties the required ten day notice that, on the Court’s own motion, we are questioning our jurisdiction and giving the appellant an opportunity to respond.  See Tex. R. App. P. 42.3(a).  Further, Chief Justice Gray notes that the record in this appeal does not contain the required certification of the defendant’s right to appeal.  Tex. R. App. P. 25.2(d).  “The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules.” Id.  But there is no indication that the lack of the certification has been called to the trial court’s or trial court clerk’s attention.  See Tex. R. App. P. 34.5(c)(1).  On this record dismissal of this appeal is premature.”).

d at 894. Hickman's second point is sustained. The judgment is reversed, the decree ordering partition and appointment of commissioners is vacated and the cause is remanded for trial. See Tex. R. Civ. P. 760, 761.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas, Justice Cummings

           and Justice Vance

Reversed and Remanded

Opinion delivered and filed February 21, 1991

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