      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-18-00853-CR



                                      Ex parte Gary Bowens


                        FROM THE AUSTIN MUNICIPAL COURT
          NO. 8720248, HONORABLE MITCHELL SOLOMON, JUDGE PRESIDING



                                           OPINION


               Appellant Gary Bowens, who has been charged with violating the City of Austin’s

prohibition against camping in public areas, see Austin, Tex., Austin City Code, tit. 9, art. 2,

§ 9-4-11 (2018), has filed a notice of appeal from the Austin Municipal Court’s order denying his

pretrial application for writ of habeas corpus, which challenged the constitutionality of the City’s

ordinance. The State has filed a motion to dismiss, arguing that this Court does not have jurisdiction

over Bowens’s appeal. For the following reasons, we agree and will grant the State’s motion.

               “[A] defendant’s right of appeal is a statutorily created right,” and courts “cannot

enlarge a defendant’s legislatively granted right to appeal.” Bayless v. State, 91 S.W.3d 801, 805

(Tex. Crim. App. 2002) (citing Davis v. State, 870 S.W.2d 43, 46 (Tex. Crim. App. 1994)). As a

general rule, a criminal defendant’s right of appeal is limited to an appeal from a final judgment of

conviction. See Tex. Code Crim. Proc. art. 44.02; Dewalt v. State, 417 S.W.3d 678, 683–84 (Tex.

App.—Austin 2013, pet. ref’d); see also State v. Sellers, 790 S.W.2d 316, 321 n.4 (Tex. Crim. App.

1990) (“A defendant’s general right to appeal under [article 44.02] and its predecessors has always
been limited to appeal from a ‘final judgment,’ though the statute does not contain this limitation on

its face.”); see also Tex. Gov’t Code § 30.00014(a) (“A defendant has the right of appeal from a

judgment or conviction in a municipal court of record.”).

               However, a criminal defendant has the right to immediately appeal the denial of a

pretrial application for writ of habeas corpus. See Greenwall v. Court of Appeals for Thirteenth

Judicial Dist., 159 S.W.3d 645, 649–50 (Tex. Crim. App. 2005). This is “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.” Id.

(citing Tex. Code Crim. Proc. art. 44.02).

               Nevertheless, the appeal of the denial of habeas relief must be brought in the proper

court of appellate jurisdiction. The Code of Criminal Procedure provides that “[a]ppeals from a

justice or municipal court . . . shall be heard by the county court except in cases where the county

court has no jurisdiction, in which counties such appeals shall be heard by the proper court.” Tex.

Code Crim. Proc. art. 45.042(a); see also Tex. Gov’t Code §§ 25.0003(a) (providing that statutory

county courts have “jurisdiction over all causes and proceedings, civil and criminal, original and

appellate, prescribed by law for county courts”), 25.2292 (describing jurisdiction of Travis County

Courts at Law). County courts “shall have appellate jurisdiction in criminal cases of which justice

courts and other inferior courts have original jurisdiction.” Tex. Code Crim. Proc. art. 4.08.

Municipal courts of record, including the Austin Municipal Court, have original jurisdiction of

habeas cases “in which the offense charged is within the jurisdiction of the court,” such as the

alleged violation of the city ordinance at issue here. See Tex. Gov’t Code § 30.00006(e); see also



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id. § 30.00005 (describing jurisdiction of municipal courts of record). Based on these provisions,

we conclude that the Travis County Courts at Law have appellate jurisdiction over the denial of

habeas relief in the Austin Municipal Court. See also id. §§ 30.00014(a) (“The county criminal

courts or county criminal courts of appeal in the county in which the municipality is located or the

municipal courts of appeal have jurisdiction of appeals from a municipal court of record.”),

30.00731(b) (providing that in Austin Municipal Court, “‘appellate courts’ means the county courts

at law of Travis County that have criminal appellate jurisdiction”).

                Courts of appeals, on the other hand, do not have jurisdiction over appeals from

municipal courts, with two exceptions: “(1) the fine assessed against the defendant exceeds $100

and the judgment is affirmed by the appellate [i.e., county] court; or (2) the sole issue is the

constitutionality of the statute or ordinance on which a conviction is based.” Id. § 30.00027(a)

(emphasis added); see also Tex. Const. art. V, § 6(a) (providing that appellate jurisdiction of courts

of appeals, although broad, is subject to “such restrictions and regulations as may be prescribed by

law”); Tex. Code Crim. Proc. art. 4.03 (providing that appellate jurisdiction of courts of appeals

“shall not be so construed as to embrace any case which has been appealed from any inferior court

to the county court, the county criminal court, or county court at law, in which the fine imposed or

affirmed by the county court, the county criminal court or county court at law does not exceed one

hundred dollars, unless the sole issue is the constitutionality of the statute or ordinance on which the

conviction is based”).      In his pretrial habeas application, Bowens’s sole issue was the

constitutionality of the city ordinance. However, because Bowens brought his constitutional

challenge prior to trial, there has been no conviction in the municipal court, nor has there been a



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municipal-court judgment affirmed by the county court. Thus, section 30.00027 does not apply here

and, consequently, this Court lacks jurisdiction over Bowens’s appeal. See Alexander v. State,

240 S.W.3d 72, 74–75 (Tex. App.—Austin 2007, no pet.). Accordingly, we grant the State’s motion

to dismiss and dismiss the appeal for want of jurisdiction.1



                                                      ____________________________________
                                                      Gisela D. Triana, Justice
Before Justices Goodwin, Baker, and Triana

Dismissed for Want of Jurisdiction

Filed: March 12, 2019

Publish




       1
         The record reflects that Bowens timely filed his notice of appeal with the trial-court clerk.
See Tex. R. App. P. 25.2(c)(1), 26.2(a)(1). Accordingly, his appeal may proceed in the appropriate
county court below.

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