                                   NO. 07-09-0342-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                NOVEMBER 16, 2009
                          ______________________________

                             OCTAVIO ORTIZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

           FROM THE 84TH DISTRICT COURT OF HANSFORD COUNTY;

               NO. CR01475; HONORABLE WILLIAM D. SMITH, JUDGE
                       _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Appellant Octavio Ortiz attempts to challenge an order denying bail pending appeal.

Finding we lack original habeas corpus jurisdiction and his attempt to invoke this court’s

appellate jurisdiction was untimely, we will dismiss the case for want of jurisdiction.
                                       Background


      Pursuant to a plea bargain agreement, appellant plead guilty to the offense of

possession of a controlled substance of more than one gram but less than four grams.1

Punishment was assessed at five years confinement in prison. Confinement was

suspended and appellant placed on two years community supervision.


      The State subsequently filed a motion to revoke appellant’s community supervision.

Following a hearing on August 4, 2009, the trial court granted the State’s motion and

assessed punishment at five years confinement. A judgment to that effect was signed the

same day. At the hearing, appellant also requested bail pending appeal. This was denied

by a written order also signed on August 4.


      On August 4, appellant filed notice of appeal of the trial court’s judgment. The

notice was filed in this court on August 7, and the case assigned number 07-09-0263-CR.

It remains pending.


      On October 21, appellant filed in this court a document entitled “Application for Writ

of Habeas Corpus and Accelerated Appeal Regarding Denial of Appeal Bond.” In part, it

asserted appellant’s entitlement to bail on appeal and sought accelerated review of the

August 4 order denying bail. The document concluded with the request that this court

“issue a writ of habeas corpus and allow Appellant a reasonable appeal bond pending

appeal.” Treating the filing as an attempted initiation of an original proceeding or as



      1
          See Tex. Health & Safety Code § 481.115(c) (Vernon Supp. 2009).

                                              2
invoking our appellate jurisdiction, we assigned the case number 07-09-0342-CR. We

questioned our jurisdiction to grant the relief requested by the October 21 filing, and so

notified appellant by letter affording him an opportunity to respond.


       On October 29, appellant filed a document in case number 07-09-0263-CR entitled

“Motion for Accelerated Appeal Regarding Denial of Appeal Bond.”           The document

appeared substantially in form like appellant’s October 21 filing except it concluded with

the request that we “review the trial court’s denial of bond herein and allow Appellant a

reasonable appeal bond pending appeal.”


       The following day, October 30, appellant filed a motion requesting dismissal of case

number 07-09-0342-CR.2 In the document, appellant stated he timely filed a notice of

appeal of the order denying bail on appeal and the judgment revoking community

supervision. Appellant added that he mis-labeled the October 21 document, intending it

merely as a request for accelerated appeal of case number 07-09-0263-CR.


       On our own motion, we consider our appellate jurisdiction of case number 09-0342-

CR. See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.–Amarillo

1995, no writ) (appellate court must address questions of jurisdiction, sua sponte).




       2
         While signed by counsel, the motion did not contain the required signature of
appellant. Tex. R. App. P. 44.2(a).

                                             3
                                        Discussion


Habeas Corpus Jurisdiction


       A court of appeals does not possess original habeas corpus jurisdiction of a bail

issue. Ex parte Enriquez, 2 S.W.3d 362, 363 & n.1 (Tex.App.–Waco 1999, no pet.) (mem.

op.) (per curiam); see Tex. Gov’t Code Ann. § 22.221(d) (Vernon 2006) (original habeas

jurisdiction of the courts of appeals is limited to cases in which a person’s liberty is

restrained because the person violated an order, judgment, or decree entered in a civil

case); cf. Tex. R. App. P. 31.1 (pertaining to appellate review of a trial court order in a

habeas corpus or bail proceeding). Therefore, to the extent appellant intended to initiate

an original proceeding in this court challenging his denial of bail on appeal by petition for

writ of habeas corpus, we are without jurisdiction.


Appellate Jurisdiction


       In matters of bond pending appeal, Code of Criminal Procedure article 44.04(g)

provides:


       The right of appeal to the Court of Appeals of this state is expressly
       accorded the defendant for a review of any judgment or order made
       hereunder, and said appeal shall be given preference by the appellate court.

Tex. Code Crim. Proc. Ann. art. 44.04(g) (Vernon 2006). The statute does not merely

make appealable an order denying bail on appeal. Rather, it provides a separate,




                                             4
expedited appeal of such orders.3 The appellate rules applying to an appeal of a bail

determination are contained in Rule of Appellate Procedure 31. See Tex. R. App. P. 31.

An article 44.04(g) appeal “is separate from the appeal of the conviction and punishment,

and it must be perfected by a separate notice of appeal . . . .” Davis v. State, 71 S.W.3d

844, 845 (Tex.App.–Texarkana 2002, no pet.) (citing Enriquez, 2 S.W.3d at 363); see

Delangel v. State, 132 S.W.3d 491, 494 (Tex.App.–Houston [1st Dist.] 2004, no pet.)

(“[b]ecause the trial court necessarily sets such bail after final judgment . . . this appeal is

separate from any appeal of the conviction and punishment and must be perfected by a

separate notice of appeal”).       See also White v. State, 629 S.W.2d 262, 262-63

(Tex.App.–Tyler 1982, no pet.) (per curiam) (requiring separate notice of appeal).


       To perfect an appeal in criminal cases when no motion for new trial is filed, a notice

of appeal must be filed within thirty days after the day sentence is imposed, or after the day

the trial court enters an appealable order. Tex. R. App. P. 26.2(1). It has been held that

“entered” by the court means a signed, written order. See, e.g., State ex rel. Sutton v.

Bage, 822 S.W.2d 55, 56 (Tex.Crim.App. 1992); State v. Rollins, 4 S.W.3d 453, 454



       3
          An appeal separate from that challenging the judgment of guilt and punishment is
necessary because of the trial court’s continuing jurisdiction over bail issues pending
finality of conviction. Thus, a request for bail may be initiated substantially later than entry
of judgment; even after appellate briefing on the merits of the case. See Tex. Code Crim.
Proc. Ann. art. 44.04(c) (Vernon 2006). The appeal should receive preferential handling
because “[t]he object of bail is to permit the defendant to retain some measure of liberty
until final disposition of the accusations brought against him. In regard to bail pending
appeal, the issue should be resolved at the inception of the appeal when the defendant
can still derive some benefit from a bond.” Faerman v. State, 966 S.W.2d 843, 848
(Tex.App.–Houston [14th Dist.] 1998, no pet.). Said differently, raising a bail issue in an
appeal of conviction and punishment is ineffectual because the appeal is not accelerated.
Hence, by the time the bail issue is considered, the appeal is at its conclusion. Id.

                                               5
(Tex.App.–Austin 1999, no pet.). Appeals under article 44.04(g) are subject to the

appellate timetable. See In re McClain, No. 12-08-00039-CR, 2008 WL 186640, at *1 n.2

(Tex.App.–Tyler Jan. 23, 2008) (orig. proceeding) (mem. op.) (not designated for

publication) (court noted habeas application, even if treated as notice of appeal, was

untimely since it was not filed within thirty days after the trial court entered an appealable

order); Tex. R. App. P. 26.2(a). An appellate court lacks jurisdiction to consider an appeal

absent a timely filed notice of appeal.           Slaton v. State, 981 S.W.2d 208, 210

(Tex.Crim.App. 1998) (per curiam).

       Appeal of the August 4 order denying bail required a separate appeal perfected by

a timely-filed notice. Even were we to treat appellant’s October 21 document as a notice

of appeal, it was untimely.

                                         Conclusion

       Whether by original habeas corpus proceeding or direct appeal, we are without

jurisdiction to review the August 4 order denying bail on appeal. On our own motion, we

dismiss case number 07-09-0342-CR.4



                                                         James T. Campbell
                                                               Justice


Publish.


       4
          The situation presented here is unusual in that we lack appellate jurisdiction to
review the trial court’s August 4 order denying bail on appeal but the trial court retains
jurisdiction to admit appellant to bail on a new application. See Tex. Code Crim. Proc. Ann.
art. 44.04(c) (Vernon 2006). Whether to admit or deny bail is an issue not before us and
on which we express no opinion.

                                              6
