
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-264-CR
 
THE STATE OF TEXAS           
           
           
           
           
        STATE
V.
KNYVETTE REYES           
           
           
           
           
          
APPELLEE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
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OPINION
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The State of Texas seeks to appeal the
order of the trial court granting Knyvette Reyes an out-of-time appeal from the
trial court's June 28, 2002 judgment finding her guilty of criminally negligent
homicide and sentencing her to two years in a State Jail facility, probated for
four years. We grant Reyes' motion to dismiss the State's appeal for want of
jurisdiction.
BACKGROUND
Reyes originally attempted to appeal from
the June 28, 2002 judgment, but this court dismissed her appeal because the
notice of appeal and motion for extension of time to file the notice of appeal
were filed six days late. Reyes v. State, No. 2-02-505-CR (Tex.
App.--Fort Worth March 6, 2003, no pet.)(not designated for publication). This
court's mandate issued May 15, 2003.
On June 3, 2003, Reyes filed in the trial
court an application for writ of habeas corpus requesting an out-of-time appeal.
The trial court granted the writ, and after a hearing the court granted Reyes an
out-of-time appeal on July 9, 2003. The State timely filed a notice of appeal
challenging the trial court's order granting Reyes an out-of-time appeal.
Reyes has filed a motion to dismiss the
State's appeal claiming there is no statutory right for the State to appeal the
trial court's order granting Reyes an out-of-time appeal. The State responds
that it is entitled to appeal an order of a court that "arrests or modifies
a judgment." See Tex. Code Crim. Proc. Ann. art. 44.01(a)(2)
(Vernon Supp. 2003). The State's argument is that this court's decision
dismissing Reyes' prior appeal became a final judgment when mandate was issued,
and the trial court's granting of an out-of-time appeal served to "arrest
or modify" the judgment of this appellate court.
STATE'S RIGHT TO APPEAL
In 1987, article V, section 26 of the
Texas Constitution was amended to provide the State a right to appeal in
criminal cases "as authorized by general law." Tex. Const. art. V, §
26. The State's right to appeal is thus a statutorily created one. State v.
Sellers, 790 S.W.2d 316, 316 (Tex. Crim. App. 1990).
Ordinarily, a respondent in a habeas
corpus case may not appeal from an adverse ruling. State ex rel. Holmes v.
Klevenhagen, 819 S.W.2d 539, 541 (Tex. Crim. App. 1991); State v.
Fowler, 97 S.W.3d 721, 721 (Tex. App.--Waco 2003, no pet.). In general,
only the unsuccessful applicant is entitled to the right of an appeal in a
habeas corpus case. State ex rel. Holmes, 819 S.W.2d at 541. However,
the State may appeal an unsuccessful ruling in a habeas corpus case if the State
would otherwise have had the right of appeal in a criminal case. State v.
Young, 810 S.W.2d 221, 222-23 (Tex. Crim. App. 1991); Ex parte Crenshaw,
25 S.W.3d 761, 764 n.4 (Tex. App.--Houston [1st Dist.] 2000, pet.
ref'd).
The question therefore is whether the
trial court's granting of an out-of-time appeal is the equivalent of
"arresting or modifying" this court's prior judgment so as to fall
within the parameters of article 44.01(a)(2).
Rule 22 of the rules of appellate
procedure deals with arrest of judgment in criminal cases:

       
  22.1 Definition
       
  Motion in arrest of judgment means a defendant's oral or written
  suggestion that, for reasons stated in the motion, the judgment rendered
  against the defendant was contrary to law. Such a motion is made in the trial
  court.
       
  22.2. Grounds
       
  The motion may be based on any of the following grounds:

       
    (a) that the indictment or information is subject to an exception on
    substantive grounds;
       
    (b) that in relation to the indictment or information a verdict is
    substantively defective; or
       
    (c) that the judgment is invalid for some other reason.



Tex. R. App. P. 22. The rule further
provides that if judgment is arrested, the defendant is restored to the position
that she had before the indictment was presented. Tex. R. App. P. 22.6(a).
Although the State attempts to persuade us
that the trial court's order "arrested" or "modified" this
court's prior judgment, and therefore an appeal is permissible pursuant to
article 44.01(a)(2), we disagree with the State's interpretation regarding the
effect of the trial court's order. Reyes has not been restored to the position
she occupied before the indictment was presented; rather, she has been restored
to the position she occupied immediately after the trial court signed its
judgment of conviction. The effect of the trial court's order is that Reyes may
now appeal that judgment.
CONCLUSION
We hold there is no authority for the
State to appeal the trial court's order granting Reyes an out-of-time appeal.
Accordingly, the State's appeal is dismissed for want of jurisdiction. See
Tex. R. App. P. 43.2(f).
 
                                                                       
DIXON W. HOLMAN
                                                                       
JUSTICE
 
PANEL D: HOLMAN, GARDNER, and WALKER, JJ.
PUBLISH
DELIVERED: August 21, 2003

