                                                                                                    ACCEPTED
                                                                                                03-14-00270-CV
                                                                                                        7439127
                                                                                     THIRD COURT OF APPEALS
                                                                                                AUSTIN, TEXAS
                                                                                          10/19/2015 3:44:38 PM
                                                                                              JEFFREY D. KYLE
                                                                                                         CLERK
                                       NO.03-14-00270-CR


                           IN THE 3rd DISTRICT COURT OF APPEALS                FILED IN
                                                                        3rd COURT OF APPEALS
                                        AUSTIN, TEXAS                        AUSTIN, TEXAS
                                                                        10/19/2015 3:44:38 PM
                                                                            JEFFREY D. KYLE
                                                                                 Clerk

                              On appeal from the 207th District Court
                                    of Comal County, Texas

 

                          MOTION FOR RECONSIDERATION


TO THE HONORABLE COURT:


       CHRISTOPHER GRAHAM, appellant, makes this Motion for Rehearing

and in support of this motion shows as follows:

                                 I.      ISSUE PRESENTED

    Appellant filed an Application for Habeas Corpus in the trial court where the

    Court did not grant the writ or take the actions as requested by Appellant

    concerning the application. Such contrary action constitutes a decision on the

    merits of the application entitling Appellant to appellate review.

                                 II.     LEGAL STANDARD

    1. A writ of habeas corpus is an order from a judge commanding a party, who

is alleged to be restraining the applicant in some way, to appear before the court

with the object of the alleged restraint and explain the reasons for the restraint.

Tex. Code Crim. Proc. art. 11.01; Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.
Motion for Rehearing 1 
 
Crim. App. 1991). The well-established rule of law is the when an application for

habeas corpus alleging unlawful restraint is presented to a judge who refuses to

issue a writ commanding the person having the applicant in custody to produce

him for a determination of the allegations in the application, no appeal lies. Ex

parte Hargett, 819 S.W.2d at 868; Ex parte Johnson, 561 S.W.2d 841, 842 (Tex.

Crim. App. 1978) (applying principle to article 11.09 writs); Ex parte Reese, 666

S.W.2d 675, 677 (Tex. App.--Fort Worth 1984, pet. ref'd) (applying principle to

article 11.07 writs). When the trial judge denies the writ, a petitioner's remedy is

to "present his application to another judge having jurisdiction." Ex parte Johnson,

561 S.W.2d at 842; see also Ex parte Hargett, 819 S.W.2d at 868.

   2. Conversely, when a hearing is held on the merits of the applicant's claim for

relief and the trial court rules on the merits of that claim, the losing party may

appeal regardless of whether the trial court issued a writ of habeas corpus. Ex parte

Hargett, 819 S.W.2d at 868; Ex parte Reese, 666 S.W.2d at 677.

   3. When trial court does not issue the requested writ of habeas corpus, and does

not dismiss the application either; but instead, undertakes to rule on the merits of

applicant's claim, the court of appeals has jurisdiction over applicant's appeal. Ex

parte Hargett, 819 S.W.2d at 869 (footnote omitted). Therefore, under Ex parte

Hargett, the crucial question is not whether the trial court did or did not issue the

writ, but whether the court did or did not consider and resolve the merits of the


Motion for Rehearing 2 
 
petition. Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App.--Austin 2000, pet.

ref'd).

   4. Here there was an application that was filed by the Movant, as well as a

subsequent request to either to set the application for hearing or make a ruling on

the motion. When the Court acted contrary to movant’s request, it effectively

denied Movant’s request for relief and the Court made a decision as to the merits

of Appellant’s application for Habeas Corpus, thereby entitling Movant to

appellate review. It is improper that this case be dismissed because of lack of

jurisdiction. Jurisdiction is proper in this case.



                                         Respectfully submitted,

                                                           Lauren Graham & Associates PLLC

                                         By:




                                                                   CHRISTOPHER L. GRAHAM
                                                                       Texas Bar No. 24047549
                                                                               PO Box 226265
                                                                           Dallas, Texas 75222

                                                                         clgraham@lgi-law.com

                            CERTIFICATE OF SERVICE
                                        19th
          This is to certify that on 10/16/2015, a true and correct copy of the above
                                        ---

and foregoing document was served on the following parties: /s/ Christopher Graham

Motion for Rehearing 3 
 
Comal County District Attorney via fax: 830-608-2008

Judge Gary Steel via fax: 830-608-2030

Judge Doug Shaver: 830-608-2030

                          WORD COUNT CERTIFICATE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate brief contains

581 words. This is a computer-generated document created in Microsoft Word. In

making this certificate of compliance, I am relying on the word count provided by

the software used to prepare the document.




 
 
 




Motion for Rehearing 4 
 
