
NOS. 07-02-0446-CR
					         07-02-0447-CR
					         07-02-0448-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 22, 2003

______________________________


CECILIO SOSA VARGAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NOS. 6352, 32,689, 32,691; HONORABLE LEE WATERS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION
 Cecilio Sosa Vargas appeals from the trial court's refusal to reduce bail in three
related cases.  We affirm.

BACKGROUND
	As the result of a traffic accident, appellant was charged with manslaughter (trial
court cause number 6352), driving with a suspended license (trial court cause number
32,691), and failure to stop and render aid (trial court cause number 32,689).  Bail was
initially set at $1,000,000 in the manslaughter case, $2,500 in the driving with a suspended
license case, and $100,000 in the failure to stop and render aid case.  Appellant applied
to the trial court for writs of habeas corpus seeking reduction of bail in each case.  A
hearing was held on August 20, 2002.  During the hearing appellant's counsel referenced
Article 1, Section 11 of the Texas Constitution and Section 1.07 of the Code of Criminal
Procedure (1) in urging that the initial bail was excessive.  The trial court lowered appellant's
bail in the manslaughter case to $250,000 and in the failure to stop and render aid case
to $25,000.  No appeal was taken.   
	On September 30, 2002, appellant filed motions in each case to reduce bail
pursuant to CCP art.17.151.  He alleged that he had been confined for a period in excess
of 90 days, the State was not ready for trial, and his bail must be reduced to an amount he
could post.  On October 1, 2002, appellant filed amended applications for habeas writs
seeking reduction of bail in each case on the basis that the amounts set for bail during the
August 20, 2002 hearing were excessive.  The amended applications for habeas writs (1)
did not reference any constitutional provision or statutory provision other than CCP
art.17.151, (2) alleged that pursuant to CCP art. 17.151 the court was required to reduce
appellant's bail to an amount he could afford, and (3) stated that no previous application
had been made for issuance of a writ of habeas corpus seeking the relief requested in the
amended motion.  
	The trial court held a hearing on the motions to reduce bail and amended
applications for writs of habeas corpus.  The court informed the parties by letter that the
motions to reduce bail and the amended habeas applications were denied.  Written orders
denying each of appellant's motions to reduce bail were signed.  No written orders
referencing the amended applications for writs of habeas corpus were entered.  Appellant
filed notices of appeal in each of the three cases.  The notices of appeal referenced only
the orders denying appellant's motions to reduce bail.  
	By two issues, appellant contends that (1) the bail set by the trial court in the
aggregate amount of $325,500 for the three offenses was excessive and unreasonable in
violation of the Eighth Amendment to the U.S. Constitution and Article 1, Sections 11 and
13 of the Texas Constitution; and (2) the trial court erred in finding that appellant did not
rebut the State's prima facie showing of readiness within the 90 day period mandated by
CCP art. 17.151, and in failing to reduce appellant's bail to the amount he could post.ISSUE 1: EXCESSIVE BAIL
	By his first issue, appellant urges that his bail was excessive, in violation of the
Eighth Amendment to the U.S. Constitution and Article 1, Sections 11 and 13 of the Texas
Constitution.  In the Argument and Authorities section of his brief he also references CCP
articles 1.09 and 17.151.  None of these bases were urged by his motions to reduce bail
or amended habeas applications in the trial court.  His trial court motions and amended
habeas applications were based on CCP art. 17.151.  
 Appellant has not preserved error for appellate review as urged in his first issue
because his complaint on appeal does not correlate to the matters he urged at trial.  See
Tex. R. App. P. 33.1(a); (2) Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998); Thomas
v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). (3)   We overrule appellant's first issue. 
ISSUE 2: REFUSAL TO REDUCE BAIL PURSUANT

TO CCP ART. 17.151


	Via his second issue, appellant urges that the State was not ready for trial in
compliance with the time dictate of CCP art. 17.151, which provides that a defendant who
is accused of a felony and who is detained in jail pending trial must be released either on
personal bond or by reducing the amount of bail required if the State is not ready for trial
within 90 days from the commencement of the defendant's detention.  Appellant urges that
under Rowe v. State, 853 S.W.2d 581 (Tex.Crim.App. 1993), he was entitled to have bail
set at an amount the evidence showed he could make.  On this direct appeal he prays that
we set aside the trial court's interlocutory pretrial orders and enter an order that bail be set
in the aggregate at $30,000. 
 We first must consider whether we have jurisdiction.  See State v. Roberts, 940
S.W.2d 655, 657 (Tex.Crim.App. 1996).  Jurisdiction is the power of the court over the
subject matter of the case, conveyed by statute or constitutional provision, id., coupled with
personal jurisdiction over the parties.  See Flowers v. State, 935 S.W.2d 131, 134 n.4
(Tex.Crim.App. 1996); Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. 1981). 
Courts address the question of jurisdiction sua sponte, because unless a court has
jurisdiction over a matter, its actions in the matter are without validity.  See Roberts, 940
S.W.2d at 657 n.2. 
 The right to appeal is conferred by the legislature, and generally a party may appeal
only that which the legislature has authorized.  See Marin v. State, 851 S.W.2d 275, 278
(Tex.Crim.App. 1993); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992). 
Absent express authority, courts of appeals do not have jurisdiction to review interlocutory
orders, see Ex parte Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App. 1991),
although some narrow exceptions to such rule may exist.  See Wright v. State, 969 S.W.2d
588, 589 (Tex.App.-Dallas 1998, no pet.).
	The courts of appeals have split over whether appellate jurisdiction exists in regard
to direct appeals from pretrial bail rulings such as the one before us. Compare Ramos v.
State, 89 S.W.3d 122, 124-26 (Tex.App.-Corpus Christi 2002, no pet.) (TRAP 31.1
contemplates appeals of orders in bail proceedings) with Benford v. State, 994 S.W.2d
404, 409 (Tex.App.-Waco 1999, no pet.) (appellate jurisdiction does not exist over appeal
from interlocutory pretrial order increasing amount of bail because no statutory grant of
jurisdiction) and Ex parte Shumake, 953 S.W.2d 842, 846-47 (Tex.App.-Austin 1997, no
pet.).  See also Wright, 969 S.W.2d at 589-90 ("This appeal does not fall within one of the
exceptions to the rule, nor are we inclined to construe rule 31.1 of the rules of appellate
procedure to encompass a direct appeal of a pretrial order revoking bond.").    
 We lack a statutory grant of jurisdiction over this appeal.  See Benford, 994 S.W.2d
at 409.  And, although TRAP 31 addresses, in part, appeals from bail proceedings, we
note that the Rules of Appellate Procedure do not establish jurisdiction of courts of
appeals, see Olivo v. State, 918 S.W.2d 519, 523  (Tex.Crim.App. 1996), and cannot
create jurisdiction where none exists.  See State v. Riewe, 13 S.W.3d 408, 413
(Tex.Crim.App. 2000). 
 We concur with the conclusions reached by the Benford and Shumake courts.  We
lack jurisdiction over this direct appeal from interlocutory pretrial orders refusing to lower
bail pursuant to CCP 17.151.  Appellant's second issue is dismissed for want of
jurisdiction.CONCLUSION
	We affirm. 
							Phil Johnson
							Chief Justice

Publish.
1. Further reference to a provision of the Code of Criminal Procedure will be by
reference to "CCP art._."
2. Further reference to a Rule of Appellate Procedure will be by reference to "TRAP
_____."
3. To the extent appellant's first issue is based on his amended applications for writs
of habeas corpus and the rights he claimed therein under CCP art. 17.151, no reference
was made to the applications in his notices of appeal and no written orders were entered
as to those applications.  The trial court's oral pronouncement refusing to reduce
appellant's bail pursuant to the amended habeas applications may not have been sufficient
to comprise appealable orders under these records and given the posture of this appeal. 
See TRAP 25.2(b)(2) and 26.2(a)(1); State v. Kibler, 874 S.W.2d 330, 332 (Tex.App.--Fort
Worth 1994, no pet.).  Because of our disposition of appellant's first issue, we do not
address sufficiency of the notices of appeal to invoke our jurisdiction as to the amended
habeas applications, whether appealable orders existed as to the amended habeas
applications, or the effect of any possible lack of appealable orders as to our jurisdiction
over an issue based on the applications.   


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NO. 07-10-00455-CR
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C
 

NOVEMBER
16, 2010
 

 
STEPHEN SCOTT WHITAKER, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 47TH DISTRICT COURT OF POTTER
COUNTY;
 
NO. 60,131-A; HONORABLE DAN L. SCHAAP, JUDGE

 

 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
 
On
August 17, 2010, appellant, Stephen Scott Whitaker, was convicted of committing
the offense of assault on a public servant, and sentenced to incarceration in
the Texas Department of Criminal Justice, Institutional Division, for a period
of eight years.  On September 17, 2010,
appellant filed a motion for new trial with the trial court, and, on November
1, 2010, appellant filed his notice of appeal. 
We dismiss for want of jurisdiction.
Unless a
defendant timely files a motion for new trial, a defendant must file a written
notice of appeal with the trial court clerk within 30 days after the date
sentence is imposed.  Tex. R. App. P. 26.2(a).  For a motion for new trial to be timely
filed, it must be filed no later than 30 days after the date that the trial
court imposed sentence in open court.  Tex. R. App. P. 21.4(a).  
In the
present case, appellants motion for new trial was not filed with the trial
court until the 31st day after sentence was imposed in open
court.  As such, the motion for new trial
was not timely filed and, therefore, did not extend the time for appellant to
file notice of appeal.  See Tex. R. App. P. 26.2(a).  Consequently, appellants notice of appeal
was due to be filed by September 16, 2010. 
However, appellants notice of appeal was not filed until November 1,
2010, which was insufficient to invoke this Courts jurisdiction over the
appeal.  Because this Court is without
jurisdiction to address the merits of this appeal, we have no authority to take
any action other than to dismiss the appeal. 
See Slaton v. State, 981 S.W.2d 208,
210 (Tex.Crim.App. 1998).
Accordingly,
the purported appeal is dismissed for want of jurisdiction.[1]
 
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice
Do
not publish.




[1]
Appellant may have recourse by
filing a post-conviction writ of habeas corpus returnable to the Texas Court of
Criminal Appeals for consideration of an out-of-time appeal.  See Tex.
Code Crim. Proc. Ann. art.
11.07 (Vernon Supp. 2010).


