Ex Parte Robert Earl Bell ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00443-CR
NO. 02-11-00444-CR
NO. 02-11-00445-CR
EX PARTE ROBERT EARL BELL
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
In these cases charging Appellant Robert Earl Bell with aggravated
robbery and two capital murders, he appeals from the trial court’s order
dismissing his pretrial application for writ of habeas corpus in each case.
In the applications below, Appellant contended that the State’s only
witness who can affirmatively place him at the scene of the capital murders is
Willie Bell. Appellant also contended that Willie is subject to prosecution as a
party but has not been charged with any offense arising out of the transaction on
1
See Tex. R. App. P. 47.4.
which Appellant’s capital murder indictments are based. Appellant complained
that by not charging Willie, the State will benefit at trial and on appeal from
having him treated as merely a possible accomplice as a matter of fact instead of
as an accomplice of law, violating Appellant’s rights to equal protection and due
process. In essence, Appellant complained of selective prosecution. Appellant
sought habeas corpus relief on the theory that otherwise, his rights to equal
protection would be undermined. In the capital murder cases, he sought to
preclude the State’s prosecution. In the robbery case, Appellant requested that
the State be barred from using Willie Bell’s testimony at Appellant’s punishment.
In the State’s oral and written responses below, it argued that the trial court
had no jurisdiction to grant habeas relief. After hearing argument on the issue of
its jurisdiction but refusing to allow evidence on the merits of Appellant’s habeas
applications, the trial court granted the State’s motion to dismiss Appellant’s
application for habeas corpus for want of jurisdiction in each case.
Here, Appellant claims that the “sole issue before this Court . . . is the
propriety of whether the trial court can summarily dismiss an application for
habeas corpus . . . with no inquiry.” The State argues, among other things, that
Ex parte Hargett2 bars appeals from habeas applications dismissed on grounds
other than the merits. We agree. The Hargett court explained,
It is well settled that no appeal can be had from a refusal to
issue or grant a writ of habeas corpus even after a hearing.
2
819 S.W.2d 866 (Tex. Crim. App. 1991).
2
However, the portion of that statement of law which we have
emphasized can be confusing so, we will clarify it. In the cases
which rely on that statement of law, the “hearing” which is being
referred to is one which a court might hold in order to determine
whether there is sufficient cause for the writ to be issued or whether
the merits of the claim should be addressed. That type of hearing is
not the same as one which is held to ultimately resolve the merits of
an applicant’s claim. When a hearing is held on the merits of an
applicant’s claim and the court subsequently rules on the merits of
that claim, the losing party may appeal.3
Because our review of the record corresponds with the parties’ views that
the trial court did not rule on the merits of Appellant’s habeas applications, we
dismiss these appeals for want of jurisdiction.4
PER CURIAM
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 29, 2011
3
Id. at 868 (citations omitted).
4
See id.; Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983); Ex
parte Cozzi, 138 S.W.3d 454, 455 (Tex. App.—Fort Worth 2004, pet. ref’d).
3