                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-14-00625-CR

                                 EX PARTE Devan S. MATTHEWS

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR11609
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: November 12, 2014

DISMISSED FOR WANT OF JURISDICTION

           Appellant Devan S. Matthews filed an application for writ of habeas corpus asserting he

was being held in violation of his federal and state constitutional protections against double

jeopardy. The trial court denied the relief he requested in his application, and Matthews appeals.

Because Matthews’s notice of appeal was not timely filed, this court’s appellate jurisdiction was

not invoked. We dismiss this appeal for want of jurisdiction.

                                            BACKGROUND

           During Matthews’s January 2012 trial, before returning from a break from voir dire, a

venire member had a thirty-minute conversation with a woman he knew. The woman told the

veniremember she was attending the trial to support Matthews—the father of her child. The

veniremember was selected as a juror, the jury was sworn, and witness testimony began.
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          After the jury was released for the day, the veniremember (now a juror) remained in the

courtroom. He disclosed to the judge his conversation with the woman. He explained she had

worked in his restaurant and they had a friendly relationship. He added that he told other

veniremembers about the woman and at least some aspects of their conversation.

          When the trial court completed questioning the juror, it granted a mistrial over Matthews’s

objection.

          On January 31, 2014, Matthews filed an application for writ of habeas corpus. He argued

that jeopardy had attached in his previous trial, there was no manifest necessity to declare a

mistrial, and his pending trial was barred by federal and state constitutional prohibitions against

double jeopardy.

          On March 28, 2014, the trial court held a hearing on Matthews’s application. It took the

matter under advisement, and it later denied the requested relief in a signed order dated June 16,

2014. 1

          On August 26, 2014, the trial court issued findings of fact and conclusions of law that

specifically addressed Matthews’s application for writ of habeas corpus. As its final conclusion,

the trial court stated “the Application for Writ of Habeas Corpus is hereby DENIED.”

          On September 4, 2014, Matthews filed a notice of appeal. He initially acknowledged the

notice was not timely, and he requested an extension of time to file his notice of appeal. On


1
  The record does not show the trial court granted the writ. See Ex parte Carter, 849 S.W.2d 410, 413 (Tex. App.—
San Antonio 1993, pet. ref’d) (recognizing that generally the trial court must have granted the writ and denied the
requested relief before a habeas corpus order is appealable). Instead, the record shows the trial court held a hearing
on the application, received evidence and argument from counsel, and took the matter under advisement before issuing
an “Order Denying Habeas Corpus Relief.” We conclude the trial court considered the merits of Appellant’s
application, denied the requested relief, and the order was immediately appealable. See Ex parte Cantu, 913 S.W.2d
701, 704 (Tex. App.—San Antonio 1995, pet. ref’d) (citing Ex parte Hargett, 819 S.W.2d 866 (Tex. Crim. App. 1991),
superseded by statute as recognized by Ex parte Villanueva, 252 S.W.3d 391 (Tex. Crim. App. 2008)) (“[W]hen 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 whether a writ issues or not.”); see also Ex parte Villanueva, 252 S.W.3d 391, 393–97 (Tex.
Crim. App. 2008) (reviewing Ex parte Hargett and recognizing that the legislature’s changes to article 11.072
superseded Hargett with respect to applications in community supervision cases).

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September 23, 2014, we ordered Matthews to show cause why his appeal should not be dismissed

for want of jurisdiction. In his response, Matthews changed his position: he argued his notice of

appeal was timely filed because it was filed within thirty days of the August 26, 2014 findings that

included a conclusion denying his application.

                              INVOKING APPELLATE JURISDICTION

       “A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.” Olivo

v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); accord Castillo v. State, 369 S.W.3d 196,

198 (Tex. Crim. App. 2012). Generally, a defendant has thirty days from the date of an appealable

order to file a notice of appeal. See TEX. R. APP. P. 26.2(a)(1); Olivo, 918 S.W.2d at 522; Green

v. State, 999 S.W.2d 474, 476 (Tex. App.—Fort Worth 1999, pet. ref’d). “If a notice of appeal is

not timely filed, the court of appeals has no option but to dismiss the appeal for lack of

jurisdiction.” Castillo, 369 S.W.3d at 198; see Olivo, 918 S.W.2d at 522.

                            NO JURISDICTION FOR UNTIMELY APPEAL

       Here, Matthews initially sought an extension of time to file his notice of appeal. Thereafter,

he argued his notice was timely filed because it was filed within thirty days after the trial court’s

findings that denied his application. We address each argument in turn.

A.     Extension of Time to File Notice of Appeal

       1.      Absence of Notice

       Matthews initially conceded he did not timely file a notice of appeal. He asserted he had

no notice or actual knowledge of the appealable order within twenty days of the date the order was

signed. Cf. TEX. R. APP. P. 4.2(c) (no notice in civil case); TEX. R. CIV. P. 306a (same). He moved

this court to grant his motion for an extension of time to file his notice of appeal.




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        2.      Extension of Time

        In a criminal case, neither Appellate Rule 4.2 nor Civil Rule 306a applies. E.g., Dewalt v.

State, 417 S.W.3d 678, 689–90 (Tex. App.—Austin 2013), pet. ref’d, 426 S.W.3d 100 (Tex. Crim.

App. 2014) (“Although [no notice of the appealable order] might excuse an untimely notice of

appeal in a civil case, ‘[n]o comparable rule exists for criminal cases,’ and Texas courts have

routinely held, as we must do here, that being unaware of an appealable order or judgment does

not excuse an untimely notice of appeal.” (second alteration in original) (footnotes omitted)); Pope

v. State, No. 05-10-01455-CR, 2011 WL 924477, at *2 (Tex. App.—Dallas Mar. 18, 2011, no pet.)

(mem. op., not designated for publication) (same).

        A late notice of appeal may be considered timely and invoke a court of appeals’ jurisdiction

if “(1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for extension of

time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice

of appeal, and (3) the court of appeals grants the motion for extension of time.” Olivo, 918 S.W.2d

at 522; see Castillo, 369 S.W.3d at 198.

        3.      No Extension Under Rules

        In this case, after a hearing, the trial court signed an order denying Matthews’s application

on June 16, 2014. Matthews did not file a motion for new trial, or any other motion challenging

the trial court’s order, within thirty days of the order. See, e.g., TEX. R. APP. P. 21.2 (motion for

new trial); id. R. 21.4 (time to file motion). Because Matthews did not file either a motion for new

trial or a motion for extension of time to file a notice of appeal within thirty days of the June 16,

2014 order, Matthews’s September 4, 2014 notice of appeal was untimely and did not invoke this

court’s appellate jurisdiction. See TEX. R. APP. P. 26.2(a)(1); Olivo, 918 S.W.2d at 522; Kelson v.

State, 167 S.W.3d 587, 594 (Tex. App.—Beaumont 2005, no pet.); Green, 999 S.W.2d at 476.



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B.     Notice Filed After Subsequent Order

       In his response to our show cause order, Matthews argued his notice of appeal was timely

filed. He notes the trial court signed its findings of fact and conclusions of law on August 26,

2014, and its final conclusion denied his application for writ of habeas corpus. He argues that

because he filed his notice of appeal on September 4, 2014, less than thirty days after the trial court

denied the relief he requested in his application, his notice was timely. We begin our analysis of

Matthews’s argument by reviewing the purpose, nature, and effect of a pretrial application for writ

of habeas corpus.

       1.      Pretrial Habeas Corpus Application Procedure, Purpose

       If a defendant has been indicted but not yet tried, he may assert his constitutional protection

against double jeopardy by filing a pretrial application for writ of habeas corpus. See TEX. CODE

CRIM. PROC. ANN. art. 11.07 § 2 (West Supp. 2014); Ex parte Watkins, 73 S.W.3d 264, 267 (Tex.

Crim. App. 2002); Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex. Crim. App. 1986).

       “The purpose of a writ of habeas corpus is to obtain a speedy and effective adjudication of

a person’s right to liberation from illegal restraint.” Ex parte Kerr, 64 S.W.3d 414, 419 (Tex.

Crim. App. 2002); see also Gibson v. Dall. Cnty. Dist. Clerk, 275 S.W.3d 491, 492 n.2 (Tex. Crim.

App. 2009) (quoting Ex parte Kerr, 64 S.W.3d at 419) (same).

       2.      Nature of Proceeding

       The habeas corpus proceeding is not merely another motion within the criminal

prosecution; its proceeding “has always been regarded as separate from the criminal prosecution.”

Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim.

App. 2005); accord Ex parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004); Kelson v. State,

167 S.W.3d 587, 593 (Tex. App.—Beaumont 2005, no pet.) (“Habeas corpus proceedings are

separate and distinct proceedings independent of the cause instituted by the presentation of an
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indictment or other forms of the State’s pleadings.”); Green v. State, 999 S.W.2d 474, 477 (Tex.

App.—Fort Worth 1999, pet. ref’d) (same).

       In Greenwell, the court explained as follows:

       A habeas corpus action is, in theory, a different litigation than the criminal
       prosecution . . . . When habeas corpus is used as a vehicle for raising matters
       pretrial in a pending criminal prosecution, the difference between the pending
       prosecution and the habeas corpus proceeding is both more subtle and more
       significant. An order denying relief on the merits is a final judgment in the habeas
       corpus proceeding. Therefore, it is immediately appealable by the unsuccessful
       petitioner.

Greenwell, 159 S.W.3d at 649–50 (alteration in original) (quoting 43 GEORGE E. DIX & ROBERT

O. DAWSON, CRIMINAL PRACTICE         AND   PROCEDURE § 47.51, at 219–20 (2d ed. 2001). Under

Greenwell and its ilk, if an applicant files a pretrial application, and the trial court grants the

application but denies the relief sought, the order is effectively a final judgment and is immediately

appealable, even though the criminal prosecution has not yet advanced to trial. See id.; Ex parte

Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005); Ex parte McCullough, 966 S.W.2d 529, 531

(Tex. Crim. App. 1998).

       3.      Appellate Review

       Although “there are no statutes that specifically grant a right to immediately appeal the

denial of relief in a pre-conviction habeas corpus proceeding,” the order is immediately appealable

“because the habeas proceeding is in fact considered a separate ‘criminal action,’ and the denial of

relief marks the end of the trial stage of that criminal action and the commencement of the

timetable for appeal.” Greenwell, 159 S.W.3d at 650 (emphasis added); see Kelson, 167 S.W.3d

at 594; Green, 999 S.W.2d at 476.

       If the applicant seeks appellate review of the trial court’s order, the applicant must file the

notice of appeal within thirty days “after the day the trial court enters the order.” See TEX. R. APP.

P. 26.2(a)(1); Kelson, 167 S.W.3d at 594; Green, 999 S.W.2d at 476.

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       4.      Trial Court Plenary Power in Habeas Corpus Proceeding

       Having reviewed the purpose, nature, and effect of an application, we consider the effect

of the trial court’s June 16, 2014 order as it pertains to its August 26, 2014 findings of fact and

conclusions of law. We begin by examining the limits of the trial court’s plenary power in a habeas

corpus proceeding.

       Generally, in a criminal prosecution, a trial court’s plenary power continues “for the first

thirty days after sentencing.” In re State ex rel. Sistrunk, 142 S.W.3d 497, 503 (Tex. App.—

Houston [14th Dist.] 2004, orig. proceeding) (citing TEX. R. APP. P. 21, 22); accord State v.

Aguilera, 165 S.W.3d 695, 697–98 (Tex. Crim. App. 2005); see also Swearingen v. State, 189

S.W.3d 779, 781 n.10 (Tex. Crim. App. 2006). During that thirty-day period, the trial court may

receive a motion for new trial or a motion in arrest of judgment. See TEX. R. APP. P. 21, 22;

Aguilera, 165 S.W.3d at 697–98; In re State ex rel. Sistrunk, 142 S.W.3d at 503.

       If it receives such a post-judgment motion, its plenary power is extended up to seventy-

five days after sentencing. See TEX. R. APP. P. 21.8(a),(c); Awadelkariem v. State, 974 S.W.2d

721, 728 (Tex. Crim. App. 1998); In re State ex rel. Sistrunk, 142 S.W.3d at 503. If no party timely

files a post-judgment motion, the trial court’s plenary power expires thirty days after the sentence

or appealable order. See TEX. R. APP. P. 21.4; Aguilera, 165 S.W.3d at 697–98; Awadelkariem,

974 S.W.2d at 728; State v. Dunbar, 269 S.W.3d 693, 696 (Tex. App.—Beaumont 2008), aff’d,

297 S.W.3d 777 (Tex. Crim. App. 2009).

       After its plenary power over a cause expires, the trial court generally lacks the authority to

take any action in the cause. State v. Garza, No. 04-13-00331-CR, 2014 WL 3734200, at *2 n.3

(Tex. App.—San Antonio July 30, 2014, no pet.); Florance v. State, 352 S.W.3d 867, 874 n.5

(Tex. App.—Dallas 2011, no pet.); In re State ex rel. Sistrunk, 142 S.W.3d at 503. But see Int’l

Fid. Ins. Co. v. State, No. 14-98-00324-CR, 2000 WL 729384, at *2 (Tex. App.—Houston [14th
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Dist.] June 8, 2000, pet. ref’d) (not designated for publication) (observing that a trial court may act

on remand from a higher court even after its own plenary power has expired).

       5.      Trial Court Plenary Power in Habeas Corpus Proceeding

       On June 16, 2014, the trial court denied Matthews the relief he requested in his application.

The order was immediately appealable: it started the appellate timetable, Greenwell, 159 S.W.3d

at 650; Kelson, 167 S.W.3d at 594; Green, 999 S.W.2d at 476, and established the date from which

the trial court’s plenary power would be calculated, see Aguilera, 165 S.W.3d at 697–98;

Awadelkariem, 974 S.W.2d at 728; Dunbar, 269 S.W.3d at 696.

       A post-judgment motion was due not later than July 16, 2014. See, e.g., TEX. R. APP. P.

21.4; Swearingen, 189 S.W.3d at 781. Neither Matthews nor the State filed any motion in the

habeas corpus action by the due date.

       We hold the trial court’s plenary power in the habeas corpus action expired on July 16,

2014, and it lacked authority to issue the findings of fact and conclusions of law on August 26,

2014. See Aguilera, 165 S.W.3d at 697–98; Awadelkariem, 974 S.W.2d at 728; Dunbar, 269

S.W.3d at 696; cf. In re R.G., 388 S.W.3d 820, 826 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

(habeas corpus in juvenile court). Accordingly, the trial court’s August 26, 2014 findings were a

legal nullity in the habeas corpus action. Because the trial court’s plenary power in the habeas

corpus action expired before it issued its findings and conclusions, they could not, and did not,

extend or reset the appellate timetable. Thus, Matthews’s notice of appeal was not timely filed.

                                            CONCLUSION

       Although Matthews argues he had no notice or actual knowledge of the trial court’s June

16, 2014 order denying him habeas corpus relief, the civil rules do not operate to make his late

notice of appeal timely. Further, the trial court had lost its plenary power in the habeas corpus

action before it issued its August 26, 2014 findings of fact and conclusions of law. Consequently,
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its findings did not extend or reset the appellate timetable. Therefore, Matthews did not timely file

a notice of appeal, and this court’s appellate jurisdiction has not been invoked. Accordingly, we

dismiss this appeal for want of jurisdiction.


                                                  Patricia O. Alvarez, Justice

PUBLISH




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