Walter James Tubbs v. State ( 1992 )

Tubbs v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-139-CR

     WALTER JAMES TUBBS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From County Court at Law No. 2

Brazos County, Texas

Trial Cause # 1964-89

MEMORANDUM OPINION

      Walter Tubbs attempts to appeal from the purported denial of relief under a writ of habeas corpus. We must dismiss the appeal for want of jurisdiction because the record does not reflect that the court ever issued the writ.

      The State charged Tubbs with driving while intoxicated. After a jury was empaneled and sworn, the court granted a mistrial over Tubbs' objection. Tubbs filed a special plea of double jeopardy, alleging that the double-jeopardy clause of the federal constitution barred a retrial of the case because the court did not grant the mistrial out of manifest necessity. However, the court denied the special plea. Tubbs then petitioned for a writ of habeas corpus on the same allegations of double jeopardy. Following a hearing, the court denied "the application for habeas," and Tubbs gave written notice of appeal.

      A writ of habeas corpus is a written order issued by the court or judge, directed to any one having a person in custody or restraint, commanding him to produce the person at a time and place named in the writ and show why the person is being held in custody or under restraint. Tex. Code Crim. Proc. Ann. art. 11.01 (Vernon 1977). The writ must be served and a return made. Id. at arts. 11.27, 11.28. The transcript does not contain a writ of habeas corpus or a return of service.

      Before the court of appeals has jurisdiction, the court must first issue the writ and then, after a hearing, deny the relief sought in the petition for habeas corpus. Ex parte Noe, 646 S.W.2d 230, 231 n.1 (Tex. Crim. App. 1983); Ex parte Johnson, 561 S.W.2d 841, 842 (Tex. Crim. App. [Panel Op.] 1978); Ex parte Herrera, 750 S.W.2d 923, 925 (Tex. App.—Corpus Christi 1988, no pet.). The record does not reflect that the court ever issued the writ before denying the relief requested in Tubbs' "application." We dismiss the appeal for want of jurisdiction. See id.

                                                                                     PER CURIAM

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed September 30, 1992

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