Patrick Lenard v. State of Texas ( 2014 )

Dismissed and Opinion Filed September 12, 2014
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-14-00767-CR
PATRICK LENARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F12-62409-V
MEMORANDUM OPINION
Before Chief Justice Wright, and Justices FitzGerald and Fillmore
Opinion by Justice FitzGerald
Patrick Lenard is charged by indictment with aggravated kidnapping. The trial court set
his bond at $1,282,000, but later reduced it to $1,000,000. Appellant was released on a $250,000
surety bond. On June 4, 2014, the trial court held the bond was insufficient and raised it to
$1,000,000. Appellant appealed the trial court’s order raising the bond. We conclude we lack
jurisdiction over the appeal.
“Jurisdiction concerns the power of a court to hear and determine a case.”1 The
jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to
1
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
act is as absent as if it did not exist.2 “The standard to determine whether an appellate court has
jurisdiction to hear and determine a case ‘is not whether the appeal is precluded by law, but
whether the appeal is authorized by law.’”3 The right to appeal in a criminal case is a statutorily
created right.4 Appellate courts may consider appeals by criminal defendants only after
conviction or the entry of an appealable order.5
In Ragston v. State, the Texas Court of Criminal Appeals held that courts of appeals do
not have jurisdiction over interlocutory orders regarding excessive bail or the denial of bail.6
Because the order in this case appeared to be an interlocutory order, as opposed to a final order
on a pretrial application for writ of habeas corpus, we directed the parties to address our
jurisdiction over the appeal. In response, appellant asserted several bases by which the Court has
jurisdiction. The State did not timely file a brief.
Appellant first asserts that article 44.42 of the Texas Code of Criminal Procedure is broad
enough to provide appellate jurisdiction in this case. We disagree. First, article 44.42 is titled
“[a]ppeal on forfeiture.” It provides a defendant the right to appeal from a “final judgment
rendered upon a personal bond, bail bond, or bond taken for the prevention or suppression of
offenses . . . .”7 Although arising out of prior criminal proceedings, “bail bond proceedings are
independent from and collateral to the criminal prosecutions.”8
2
See id. at 523.
3
Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271 S.W.3d 694, 696–97 (Tex. Crim. App.
2008)).
4
See McKinney v. State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004); see
also TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006) (providing right of appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal
by defendant).
5
See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).
6
Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App. 2014).
7
TEX. CODE CRIM. PROC. ANN. art. 44.42 (West 2006).
8
8 C.J.S. Bail § 264 (2005).
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The order at issue here is neither a bond forfeiture nor a final judgment. Rather, it is an
interlocutory order issued by the trial court raising appellant’s pretrial bond. Thus, we conclude
article 44.42 does not give this Court jurisdiction over the appeal from the trial court’s order
raising his bond.
Appellant next asserts that although most appeals of bond issues are from orders on
pretrial applications for writ of habeas corpus, filing a writ application in this case would have
been a useless act because the trial court had already held the bond insufficient. In support of his
argument, appellant cites to language in Fletcher v. State,9 in which the court of criminal appeals
quoted this Court’s statement that the “law does not require a useless thing to be done.”
However, the court of criminal appeals went on to conclude this Court erred in taking judicial
notice of its own mandate, thereby relieving the State of its burden to prove the finality of a
conviction used for enhancement purposes, reversed our judgment, and remanded Fletcher’s case
to the trial court for a new punishment hearing.10
Appellant cites no case for the proposition that he may circumvent the proper procedure
for seeking a reduction of his pretrial bond or obtaining appellate review of the trial court’s
ruling. Therefore, we conclude his “useless act” argument does not support our jurisdiction over
the appeal.
Finally, appellant contends the broad terms of article 44.02 favor appealability. Again,
we disagree. Article 44.02 provides for the right of a defendant to appeal following conviction.11
Appellant is not appealing a judgment of conviction; thus article 44.02 does not give this Court
jurisdiction over the appeal. Moreover, in Ragston, the court of criminal appeals specifically
9
214 S.W.3d 5, 6 (Tex. Crim. App. 2007).
10
Id. at 9.
11
TEX. CODE CRIM. PROC. ANN. art. 44.02.
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held that “[t]here is no constitutional or statutory authority granting the courts of appeals
jurisdiction to hear interlocutory appeals regarding excessive bail or the denial of bail.”12
Because the order from which appellant seeks to appeal is an interlocutory order raising
his pretrial bond, we conclude we lack jurisdiction over the appeal. We dismiss the appeal for
want of jurisdiction.
/Kerry P. FitzGerald/
Do Not Publish KERRY P. FITZGERALD
TEX. R. APP. P. 47 JUSTICE
140767F.U05
12
Ragston, 424 S.W.3d at 52.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PATRICK LENARD, Appellant On Appeal from the Criminal District Court
No. 7, Dallas County, Texas
No. 05-14-00767-CR V. Trial Court Cause No. F12-62409-V.
Opinion delivered by Justice FitzGerald,
Chief Justice Wright and Justice Fillmore
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, we DISMISS the appeal for want of
jurisdiction.
Judgment entered September 12, 2014
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