                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-14-00393-CR

                                      Asel ABDYGAPPAROVA,
                                             Appellant

                                                  v.
                                                 The
                                         The STATE of Texas,
                                               Appellee

                      From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2001CR4918A
                               Honorable Ron Rangel, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 4, 2015

AFFIRMED

           In 2005, a jury found appellant guilty of capital murder and assessed punishment at life in

prison. A panel of this court reversed the trial court’s judgment and remanded the cause for a new

trial. See Abdygapparova v. State, 243 S.W.3d 191 (Tex. App.—San Antonio 2007, pet. ref’d).

On July 28, 2010, appellant filed a “Petition for Writ of Habeas Corpus and Plea in Bar,” arguing

double jeopardy prevented the State from retrying her and asking the trial court to dismiss with

prejudice the indictment against her. On January 7, 2011, the trial court denied the requested relief.

Appellant appealed and, on September 7, 2011, a panel of this court affirmed the trial court’s order
                                                                                       04-14-00393-CR


denying habeas corpus relief. Ex parte Abdygapparova, No. 04-11-00093-CR, 2011 WL 3916814

(Tex. App.—San Antonio Sept. 7, 2011, no pet.).

        After several continuances of her trial, appellant entered into a plea agreement, pleading

nolo contendere to murder. The trial court accepted the plea, followed the plea agreement, and

sentenced appellant to a cap of twenty-eight years’ confinement. The trial court later signed a

Certification of Defendant’s Right of Appeal, stating this “is a plea-bargain case, but matters were

raised by written motion and filed and ruled on before trial and not withdrawn or waived, and the

defendant has the right to appeal.” According to appellant, only two motions were ruled on before

trial: her petition for writ of habeas corpus and a motion to dismiss court-appointed counsel. In

this appeal, appellant argues her “right to be free from double jeopardy was violated by the

prosecution’s intentional and pervasive misconduct and the trial judge’s partiality during the jury

trial to the extent that the trial is structurally impaired.” We interpret this complaint as asserting

the trial court erred in denying appellant’s 2010 “Petition for Writ of Habeas Corpus and Plea in

Bar.”

                                          DISCUSSION

        In this appeal, appellant asserts the actions of the Bexar County District Attorney’s Office

and the trial judge prevented her from having a fair trial, which resulted in her 2005 conviction.

Appellant argues the State should not have another opportunity to proceed to trial “after acting as

it did in the previous jury trial.” Appellant concedes this same issue was raised in her 2011 appeal,

but she contends the issue should be reviewed again in this appeal. We disagree.

        “A habeas corpus 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); Ex parte Matthews, 452 S.W.3d 8, 12 (Tex. App.—San Antonio

2014, no pet.) (“habeas corpus proceeding is not merely another motion within the criminal
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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,” and is, therefore, immediately appealable.

Greenwell, 159 S.W.3d at 649-50 (quoting 43 GEORGE E. DIX & ROBERT O. DAWSON, CRIMINAL

PRACTICE AND PROCEDURE § 47.51, at 219-20 (2d ed. 2001)).

       The right to appeal from the denial of habeas corpus relief occurs “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.

at 650; see also Ex parte Matthews, 452 S.W.3d at 13-14. “The appealability of a habeas

proceeding turns not upon the nature of the claim advanced but upon the use of the procedure itself

and the trial court’s decision to consider the claim (i.e. ‘issue the writ’).” Greenwell, 159 S.W.3d

at 650. Thus, “[i]n the double jeopardy context, an immediate appeal from the denial of relief in

a habeas corpus proceeding is permitted even though an immediate appeal would not be permitted

when the same claim was raised only in a pretrial motion to dismiss.” Id.

       Here, appellant pursued her right to an immediate appeal of the same order denying the

same relief that she now attempts to appeal in this case. Except this time, she attempts her appeal

pursuant to Texas Rule of Appellate Procedure 25.2(a)(2). However, as noted above, the denial

of an application for writ of habeas corpus is immediately appealable. Appellant’s “Petition for

Writ of Habeas Corpus and Plea in Bar” was denied on January 7, 2011 and she immediately

appealed. After considering the merits of appellant’s appeal, this court affirmed the trial court’s

order denying habeas corpus relief. See Ex parte Abdygapparova, 2011 WL 3916814, *2. Our

resolution of the issues raised in that appeal constitutes the law of the case. See, e.g., State v.

Swearingen, 424 S.W.3d 32, 36 (Tex. Crim. App. 2014) (observing that, under law of the case
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doctrine, appellate court’s resolution of questions of law in a previous appeal are binding in

subsequent appeals concerning the same issue; “when the facts and legal issues are virtually

identical, they should be controlled by an appellate court’s previous resolution”); Janecka v. State,

937 S.W.2d 456, 466 (Tex. Crim. App. 1996) (explaining that law of the case doctrine applies

unless there are “changes of pertinent law or facts”); Ware v. State, 736 S.W.2d 700, 701 (Tex.

Crim. App. 1987) (deferring to law of the case doctrine because identical issue in present case was

resolved in prior case).

       In this appeal, appellant states: “This court was presented with an appeal of the Writ of

Habeas Corpus with a similar argument, however, more analysis is necessary regarding the issue

presented in this brief.” Other than this single sentence, appellant provides no reason for us to re-

visit our 2011 decision. See Ex parte Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993)

(“The [law of the case] doctrine is required by neither constitution nor statute, however; it is merely

a court-made prudential doctrine designed to promote judicial consistency and efficiency. . . . As

such, it should be disregarded when compelling circumstances require a redetermination of the

point of law decided on the prior appeal.”). Under these circumstances, we affirm the trial court’s

order denying habeas corpus relief.

                                          CONCLUSION

       We overrule appellant’s issue on appeal and affirm the trial court’s judgment.


                                                   Sandee Bryan Marion, Chief Justice

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