Thomas Leonard v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
THOMAS LEONARD, § No. 08-15-00163-CR
Appellant, § Appeal from the
§ 120th District Court
THE STATE OF TEXAS § of El Paso County, Texas
State. § (TC# 20110D02415)
§
ORDER
Appellant has filed a second motion to reconsider the denial of his motion to vacate the
trial court’s orders of release and detainer resulting in his transfer to the Texas Department of
Criminal Justice - Institutional Division. The motion to reconsider cites several cases addressing
the precise issue raised by Appellant. In none of those cases was the issue presented by motion.
The Court of Criminal Appeals has addressed the issue in the context of a petition for writ of
habeas corpus. See e.g., Ex parte Rodriguez, 597 S.W.2d 771 (Tex.Crim.App. 1980); Ex parte
Norvell, 528 S.W.2d 129, 131 (Tex.Crim.App. 1975). As an intermediate appellate court, the
Eighth Court of Appeals does not have original habeas corpus jurisdiction in criminal cases. The
Corpus Christi Court of Appeals addressed the Article 42.09 issue in a direct appeal from the
order setting the appeal bond but it did so while addressing the merits of the appeal. See
Rodriguez v. State, 744 S.W.2d 361 (Tex.App.--Corpus Christi 1988, no pet.). A court of
appeals may address matters incident to an appeal by motion, such as extension requests to file
the record and the briefs, but we unaware of any authority permitting an appellate court to
consider a motion which seeks to vacate the trial court’s order transferring a prisoner from the
county jail to the state penitentiary. In our view, this issue is part of the merits of the pending
appeal related to the appeal bond. Appellant has not asked us to consider his motion as a petition
for writ of mandamus, but mandamus relief is not available when a party has an adequate remedy
by appeal. The issue presented by Appellant’s motion can be raised in his brief which is due to
be filed on September 3, 2015. The Court will take steps to expedite resolution of this appeal
when Appellant’s brief is filed.
IT IS SO ORDERED this 24th day of August, 2015.
PER CURIAM
Before McClure, C.J., Rodriguez and Hughes, JJ.