Ex Parte Salvador Zavala ( 2011 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-11-00198-CR

Ex parte Salvador Zavala

From the County Court

Navarro County, Texas

Trial Court No. 52,611

MEMORANDUM  Opinion

            Salvador Zavala pled no contest in 2004 to the offense of unlawfully carrying a weapon.  Tex. Penal Code Ann. § 46.02 (West 2011).  This is a misdemeanor offense.  Id. (b).  Zavala also had a capital murder charge pending in Houston.  Zavala has been attempting to file various applications for a writ of habeas corpus regarding the misdemeanor offense.  We have dismissed Zavala’s appeals twice.  See Ex parte Zavala, No. 10-10-00323-CR, 2010 Tex. App. LEXIS 8806 (Tex. App.—Waco Nov. 3, 2010, no pet. h.); Ex parte Zavala, No. 10-10-00238-CR, 2010 Tex. App. LEXIS 6262 (Tex. App.—Waco Aug. 4, 2010, no pet. h.). 

            Zavala filed another application for a writ of habeas corpus with the trial court which the trial court denied.  He has now attempted to appeal that order.  In a letter dated June 8, 2011, the Clerk of this Court notified Zavala that his appeal was subject to dismissal because it appeared the trial court did not rule on the merits of his application for writ of habeas corpus and there is no right of appeal from a refusal to issue a writ of habeas corpus when the trial court does not consider and resolve the merits of the application.  See Ex Parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 2004); Ex Parte Okere, 56 S.W.3d 846, 850 (Tex. App.—Fort Worth 2001, pet. ref'd).  The Clerk also warned Zavala that the Court would dismiss the appeal unless, within 21 days of the date of the letter, a response was filed showing grounds for continuing the appeal.  Zavala filed a response; however, it does not convince us that the trial court ruled on the merits of his application for writ of habeas corpus.

            Accordingly, this appeal is dismissed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Appeal dismissed

Opinion delivered and filed June 29, 2011

Do not publish

[OT06]

ce of Hearing

               In her first issue, Sandra argues that she was denied due process when the trial court entered a final order against her without giving her adequate notice of the hearing.  The Texas Family Code requires that notice of hearing on a motion for enforcement of a child support order or possession of a child must be given at least 10 days before the date of the hearing.  Tex. Fam. Code Ann. § 157.062 (Vernon 2002).  The hearing was set for November 27, 2006, and Sandra was served on November 25, 2006, at her Oregon address.

            Sandra cites several default judgment cases supporting her argument that a trial court’s failure to provide notice constitutes a lack of due process and is grounds for reversal.  See, e.g., LBL Oil Co. v. Int'l Paper Servs., 777 S.W.2d 390, 391 (Tex. 1989) (reversing default judgment for lack of notice of hearing); Custom-Crete, Inc. v. K-bar Servs., Inc., 82 S.W.3d 655, 660 (Tex. App.—San Antonio 2002, no pet.) (party challenging trial court judgment for lack of notice has burden of proving no notice);  Blanco v. Bolanos, 20 S.W.3d 809, 811 (Tex. App.—El Paso 2000, no pet.) (trial court's failure to give required notice constitutes lack of due process and grounds for reversal); Vining v. Vining, 782 S.W.2d 261, 262 (Tex. App.—Houston [14th Dist.] 1989, no writ) (court held that once defendant has made appearance in case, he is entitled to notice of trial setting as matter of due process).

This case was started as a contested matter by Jeffrey to ask for permission to move the children to Louisiana.  By making an appearance in that contested case, Sandra became entitled to notice of the trial setting as a matter of due process.  Bruneio v. Bruneio, 890 S.W.2d 150, 154 (Tex. App.—Corpus Christi, 1994, no writ).  Here, the record establishes that Sandra was not served with notice of the hearing until November 25, 2006.  The hearing was held on November 27, 2006.  A trial court's failure to comply with the rules of notice in a contested case deprives a party of the constitutional right to be present at the hearing, to voice her objections in an appropriate manner, and results in a violation of fundamental due process.  Platt v. Platt, 991 S.W.2d 481, 483 (Tex. App.—Tyler 1999, no pet.).  Because Sandra did not receive adequate notice of the hearing as required by section 157.062, we sustain Sandra’s first issue.  Blanco, 20 S.W.3d at 812.  Accordingly, it is unnecessary to address Sandra’s remaining issue.

Conclusion

Having sustained Sandra’s first issue, we reverse the trial court's order and remand the cause for further proceedings.

BILL VANCE

Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed August 27, 2008

[CV06]