Motion Granted; Appeal Dismissed and Memorandum Opinion filed October
24, 2017.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00492-CR

                  EX PARTE HECTOR ARTURO CAMPOS


                    On Appeal from the 339th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1538401

                  MEMORANDUM OPINION

      Appellant Hector Arturo Campos attempts to appeal the trial court’s order of
June 12, 2017 related to his pretrial application for writ of habeas corpus seeking
reduction of bail. The State filed a motion to dismiss for lack of jurisdiction
contending the trial court refused to issue a writ and the June 12, 2017 order is not
an appealable order. We dismiss for want of jurisdiction.

                                 BACKGROUND

      Appellant has been indicted for murder. Bond was set at $50,000 in the
indictment. On May 25, 2017, the State filed a motion to revoke and increase bail.
A hearing was held on the State’s motion on May 30, 2017. After the hearing, the
trial court revoked the appellant’s bond and set bond at $175,000.

      Subsequently, appellant filed an application for writ of habeas corpus seeking
bail reduction. On June 12, 2017, the trial court signed an order entitled “order of
setting.” The typewritten language contained in the order states:

      On June 30, 20171, came on to be heard the application of Hector
      Campos for a Writ of Habeas Corpus, and it appearing to the Court that
      said Hector Campos is entitled to a hearing on said Application, it is
      THEREFORE ORDERED that the Clerk of this Court issue a Writ of
      Habeas Corpus directed to the Sheriff of Harris County, Texas, and
      commanding the Sheriff of Harris County to have and produce the
      person of Hector Campos before me in the courtroom of the 339 th
      District Court, Harris County Courthouse, on __________, 20___, at
      _____ o'clock ___.m., then and there to show cause why the said Hector
      Campos should not be released from custody on a reasonable bond.

Handwritten on the order are “Denied” and “Held hearing on May 30, 2017.” The
record contains a proposed order granting or denying the writ application which is
not signed. Additionally, the record contains a document entitled “Writ of Habeas
Corpus” which is not signed.

      This appeal followed.

                                         ANALYSIS

      Appellant’s original notice of appeal states he is seeking to appeal “the Order
Denying the Application for Writ of Habeas Corpus, dated June 12, 2017.” The State
moved to dismiss this appeal contending there is no right of appeal from a refusal to
issue a writ of habeas corpus. In response to the State’s motion to dismiss, appellant
sought to amend his notice of appeal. Appellant’s amended notice of appeal states


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          This date was handwritten on the order.

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he is seeking to appeal: (1) “the Trial Court’s Oral Order from May 30, 2017,
revoking the Defendant’s Bond, Setting a new bond to $175,000.00 and remanding
the Defendant to Custody” and (2) “the Trial Court’s Order Denying the Application
for Writ of Habeas Corpus based on the hearing that was held on May 30, 2017,
dated June 12, 2017.” Appellant’s motion to amend his notice of appeal was granted.
We address whether we have jurisdiction to decide the issues raised in appellant’s
amended notice of appeal.

   A. Order on Motion to Revoke and Increase Bail

      Generally, appeals in criminal cases are permitted only when authorized by
statute. State ex rel. Lykos v. Fine, 33 S.W.3d 904, 910 (Tex. Crim. App. 2011); see
Tex. Code Crim. Proc. Ann. art. 44.02. An appellate court can generally only
consider an appeal by a criminal defendant after a conviction. See State v. Sellers,
790 S.W.2d 316, 321, n. 4 (Tex. Crim. App. 1990). Appellate courts do not have
jurisdiction to review interlocutory orders in criminal appeals absent express
statutory authority. Apolinar v. State, 820 S.W.3d 792, 794 (Tex. Crim. App. 1991).
Appellant’s amended notice of appeal includes the desire to appeal from the trial
court’s order revoking bond and setting a new bond. Interlocutory appeal does not
lie from such an order. See Ragston v. State, 424 S.W.3d 49, 52 (Tex. Crim. App.
2014).

   B. Application for Writ of Habeas Corpus

      There is no right of appeal from a refusal to issue a writ of habeas corpus,
even after a hearing, when the trial court did not consider and resolve the merits of
the application. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991); Ex
parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981); Ex parte Mayes,
538 S.W.2d 637, 638-39 (Tex. Crim. App. 1976). In such cases, appellant may: (1)
present the application to another judge with jurisdiction; or (2) when appropriate,
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file an application for writ of mandamus. See Ex parte Villanueva, 252 S.W.3d 391,
394 (Tex. Crim. App. 2008). However, 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. Ex parte Hargett, 819 S.W.2d at 868. If the record
establishes that the trial court undertook to rule on the merits of the writ application,
a court of appeals may have jurisdiction over the appeal even if a writ was not issued.
See id. at 868-69. Accordingly, the ultimate question, based on appellant’s amended
notice of appeal, is whether the trial judge refused to consider the merits of the writ
application. See id. at 868.

      A writ of habeas corpus is “an order issued by a court or judge of competent
jurisdiction, directed to anyone having a person in his custody, or under his restraint,
commanding him to produce such person, at a time and place named in the writ, and
show why he is held in custody or under restraint.” Tex. Code Crim. Proc. Ann. art.
11.01. The trial judge issued no such order in this case. Rather, the trial judge
handwrote “denied” on an “order of setting” related to a requested hearing on the
writ application.

      While it is possible the trial court’s decision not to issue the writ was based in
part on a determination that appellant’s claim lacked merit after the May 30 hearing
related to the motion to revoke bail, that alone does not entitle appellant to an appeal.
Cf. Ex parte Miller, 931 S.W.2d 724, 725 (Tex. App.—Austin 1996, no pet.).
“[T]here is a distinction between the issuance of a writ of habeas corpus and the
granting of relief on the claims set forth in an application for that writ.” Ex parte
Hargett, 819 S.W.2d at 869. The record before us does not establish that the trial
court ruled on the underlying merits of appellant’s writ application in its June 12
order. We conclude the June 12 order did not resolve the merits of appellant’s writ
application. Accordingly, appellant has no right of appeal from the order.

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                                  CONCLUSION

      We conclude that we do not have jurisdiction to decide the issues raised in
appellant’s amended notice of appeal. Accordingly, we grant the State’s motion to
dismiss and order the appeal dismissed for lack of jurisdiction.




                                       /s/       Marc W. Brown
                                                 Justice



Panel consists of Justices Christopher, Brown, and Wise. (J. Christopher, dissents
without opinion).
Do Not Publish — TEX. R. APP. P. 47.2(b).




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