DocketNumber： 03-90-00343-CR
Filed Date： 2/20/1991
Status： Precedential
Modified Date： 9/5/2015
APPELLANT
PER CURIAM
Walter Pyron seeks to appeal from an order of the district court on his application for writ of habeas corpus. The State has filed a motion to dismiss. Because this Court concludes that the district court refused to issue the writ, the State's motion will be granted and the appeal will be dismissed.
On September 13, 1983, in Williamson County cause number 83-157-K, appellant was convicted of indecency with a child. Pursuant to a plea bargain agreement, appellant was sentenced to imprisonment for ten years. On December 15, 1983, further execution of sentence was suspended and appellant was placed on probation. One of the conditions of probation is that appellant shall not practice medicine during the term of probation. (1) Appellant did not appeal from this conviction.
Appellant filed the instant application for writ of habeas corpus in the district court on November 26, 1990. In it, appellant complains that the condition of probation prohibiting him from practicing medicine is unconstitutional and a violation of the plea bargain agreement, that he was misled by confusing statements by the court at trial, that he did not receive effective assistance of counsel at trial, and that he was denied his right to appeal. (2)
The writ application was called for consideration by the district court on December 6. The following is the full statement of facts from that proceeding:
THE COURT: I'll announce that in Cause No. 83-157-K, that is an application for a Writ of Habeas Corpus, that I have studied the petition and that it is manifest from the petition that the applicant is entitled to no relief whatsoever, and, accordingly, that the application for Writ of Habeas Corpus is in all things denied.
MR. MORGAN: Thank you Your Honor. Your Honor, for the record, just in case. I don't think it's necessary, but just in case, we would except to the Court's ruling, for the record.
THE COURT: I beg your pardon?
MR. MORGAN: We would except to the Court's ruling, for the record. I don't think it's necessary, it may only be a formality at this point, but just for the record.
THE COURT: All right. Fine.
The following day, the court entered an order containing findings of facts "based on a review of the entire Court's file, including transcriptions of court reporter's notes of hearings, the pre-sentence investigation and the Court's personal recollection of matters which have occurred in the Courtroom." The order also contains conclusions of law, the last of which is that "[i]t is manifest from the petition itself that the applicant is entitled to no relief whatsoever. Art. 11.15, Tex. Code Crim. Proc." The order concludes by stating that "the application for writ of habeas corpus is in all things DENIED."
There is an important distinction between the denial of a writ of habeas corpus and the denial of relief following issuance of a writ of habeas corpus. This distinction has been explained as follows:
We are not unmindful of the fact that considerable confusion has arisen because of the use of the expression "the writ of habeas corpus is denied," where in fact the writ has issued, a hearing provided and the court, after hearing, has determined that the relief prayed for should be denied. The proper order to be entered in such a case would, of course, be that the relief prayed for is denied, or some similar language to indicate that the applicant's prayer for release from restraint is not granted and he is to remain in custody.
It is also recognized that some confusion exists as to what orders in habeas corpus matters are appealable . . . and what are not.
We understand the rule to be that where an application alleging unlawful restraint is presented to a judge, and he declines to hear the prayer for relief and any proof which may be offered in support thereof no appeal lies. In fact no order is necessary in such a case, the judge merely having declined to hear the matter, the relief available to the applicant being to present his application to another judge having jurisdiction.
On the other hand, if the judge to whom the application for habeas corpus is presented grants the writ and, after hearing the matter, determines from the evidence or from the application, or from both, that the applicant is not illegally restrained and he denies the relief prayed for . . . an appeal lies . . . .
. . .
The nature of the proceeding and the question of its appealable nature is not to be determined alone from the form of the order entered, but the entire record may be looked to.
Nichlos v. State, 255 S.W.2d 522, 526 (Tex. Cr. App. 1953) (opinion on motion for rehearing). See and compare Ex parte Noe, 646 S.W.2d 230 (Tex. Cr. App. 1983); and Ex parte Hughes, 20 S.W.2d 1070 (Tex. Cr. App. 1929) (application for writ of habeas corpus may be denied even after a hearing).
The district court's order and the record as a whole clearly reveal that the court did not hold a hearing on the merits of the allegations contained in appellant's application for writ of habeas corpus. No testimony was taken at the December 6 proceeding. The findings of fact and conclusions of law were expressly based on the application itself, the record of prior proceedings (which were attached to the writ application as exhibits), and the court's personal recollection. While not in itself determinative, we note that the court's order denying the application tracks the language of Tex. Code Cr. P. Ann. art. 11.15 (1977). We conclude that the district court refused to issue the writ of habeas corpus, from which order no appeal lies to this Court. Ex parte Johnson, 561 S.W.2d 841 (Tex. Cr. App. 1978).
The State's motion to dismiss appeal is granted. For the reasons stated, the appeal is dismissed.
[Before Chief Justice Carroll, Justices Aboussie and Jones]
Dismissed
Filed: February 20, 1991
[Do Not Publish]
1. Appellant was a licensed physician at the time of the offense. As part of the plea bargain, appellant surrendered his license to practice medicine.
2. This is not the first time appellant has sought to set aside his conviction, or at least the condition of probation prohibiting the practice of medicine. On March 23, 1989, appellant filed a motion for discharge from probation and dismissal of cause. In this motion, as an alternative to discharge from probation, appellant moved that the conditions of probation be amended to delete the prohibition on the practice of medicine. The State responded with its own motion to amend the conditions of probation. After a hearing, the State's motion was granted and appellant's motion was denied.
An application for writ of habeas corpus substantially identical to the one before us was filed in the 368th district court in June 1990. That court ordered the application dismissed for want of jurisdiction. Appellant sought to appeal that order to this Court, but the Clerk refused to file the transcript because no appeal lies from a refusal to issue writ of habeas corpus. See Ex parte Noe, 646 S.W.2d 230 (Tex. Cr. App. 1983). Appellant then attempted to file an original application for writ of habeas corpus in the Court of Criminal Appeals, but that court denied leave to file. See Ex parte Renier, 734 S.W.2d 349 (Tex. Cr. App. 1987).