State v. Racheal Fowler ( 2003 )

The State of Texas v. Racheal Fowler

  IN THE

TENTH COURT OF APPEALS

No. 10-02-273-CR

     THE STATE OF TEXAS,

                                                                              Appellant

     v.

     RACHEAL FOWLER,

                                                                              Appellee

From the 1st District Court

Newton County, Texas

Trial Court # 5269-1

                                                                                                               Â

O P I N I O N

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      Racheal Fowler filed an application for writ of habeas corpus in the district court contending that her arrest warrant was not supported by probable cause. The court issued the writ and set the matter for hearing. After hearing, the court held that the warrant was not supported by probable cause and ordered Fowler discharged and released from her surety bond. The State appealed.

      Generally, the State cannot appeal an adverse ruling in a habeas proceeding. State ex rel. Holmes v. Klevenhagen, 819 S.W.2d 539, 541 (Tex. Crim. App. 1991) (orig. proceeding). The State may appeal an adverse habeas ruling if a statute provides for such an appeal. E.g., State v. Young, 810 S.W.2d 221, 223 (Tex. Crim. App. 1991) (habeas orders effectively setting aside indictments); State v. Kanapa, 778 S.W.2d 592, 593 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (habeas order modifying judgment).

      The State may bring an interlocutory appeal from an adverse probable cause determination only when that decision is made in an order granting a motion to suppress evidence. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2003). No other statute provides a basis for this appeal.

      Accordingly, we dismiss the State’s appeal for want of jurisdiction.

 

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Justice Gray concurring)

Appeal dismissed for want of jurisdiction

Opinion delivered and filed January 8, 2003

Publish

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  Very few documents have been filed or received at this point in this appeal.  From what we have, I have been able to piece together the following time-line:

          Date                       Description

 

          10/29/04                 Docket entry of hearing

          11/02/04                 Motion for New Trial

          11/02/04                 Motion to Reinstate

          11/08/04                 Notice of Appeal

          11/09/04                 Judgment signed

          12/23/04                 Motion Extension of Time to File Brief

          (12/17/04)               (mailed above motion)

          02/07/04                 Appellant’s Brief filed

          02/07/04                 Appellant’s Motion for Leave to Proceed in Forma Pauperis

          02/07/04                 Declaration of Inability to Pay Cost

 

          The motion for new trial and the notice of appeal both appear to be prematurely filed as they were filed prior to the signing of the judgment.  Tex. R. App. P. 12.1 and 12.2.  But there can be no question the notice of appeal was timely for the purpose of invoking our jurisdiction.  Tex. R. App. P. 27.1.

          But the Court’s holding overrules the procedure we followed in In the Interest of K.K., L.M., M.M., and T.K., 10-04-00303-CV (letter order) that allowed a late filed indigence affidavit after the receipt of a reasonable explanation and reset the timetable to contest that affidavit.  I am very reluctant to overrule a procedure so recently established. But I will join the decision, making it a unanimous holding that if the indigence affidavit is not timely filed, and no extension to consider the late filed indigence affidavit is timely filed, the case must be dismissed if the filing fee remains unpaid.

          With these remarks, I join the Court’s opinion and judgment.

 

                                                          TOM GRAY

                                                          Chief Justice

 

Concurring opinion delivered and filed March 30, 2005

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