Albert Acevedo, Jr. v. State

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NUMBER 13-05-726-CR



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI - EDINBURG



ALBERT ACEVEDO, JR.

, Appellant,

v.



THE STATE OF TEXAS, Appellee.



On appeal from the County Court at Law No. 1

of Victoria County, Texas.



DISSENTING MEMORANDUM OPINION (1)

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Dissenting Memorandum Opinion by Justice Castillo



This attempted appeal stems from the trial court's (1) refusal to convene a hearing on Acevedo's pretrial application for writ of habeas corpus, (2) denial of his pretrial application for writ of habeas corpus on double jeopardy grounds, and (3) refusal to abate proceedings to seek relief from this Court from the complained-of rulings, prior to convening an evidentiary hearing on the merits of the contempt proceedings. The majority dismisses for want of jurisdiction. I agree we should dismiss but disagree that we lack jurisdiction.

I am mindful that we may not enlarge appellate jurisdiction absent legislative mandate and that the legislature has instructed that we must not "dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities." Tex. R. App. P. 44.3; Am. Standard v. Brownsville Indep. Sch. Dist. (In re D. Wilson Constr. Co.), 196 S.W.3d 774, 784 (Tex. 2006) (Brister, J. concurring). In Am. Standard, our Supreme Court held that we erred in dismissing on jurisdictional grounds an improper appeal which we could have properly construed as a petition for writ of mandamus. Thus, in this case, I would construe Acevedo's appeal as a petition for writ of mandamus over which we have jurisdiction. Id.; see also Tex. R. App. P. 52. However, because the majority today grants full relief to Acevedo by writ of habeas corpus in the companion case, In re Acevedo, No. 13-05-725-CR, 2006 Tex. App. LEXIS ____ (Tex. App.-Corpus Christi Nov. 9, 2006, no pet. h.) (not designated for publication), I would dismiss the appeal as moot.

ERRLINDA CASTILLO

Justice



Do not publish.

Tex. R. App. P. 47.2(b).

Dissenting Memorandum Opinion delivered and filed

this 9th day of November, 2006.

1. See Tex. R. App. P. 47.1, 47.4; see also this Court's opinions in the related cases, Acevedo v. State, No. 13-05-222-CR, 2005 Tex. App. LEXIS 3668 (Tex. App.-Corpus Christi May 12, 2005, no pet.) and In re Acevedo, No. 13-05-335-CR, 2005 Tex. App. LEXIS 5754 (Tex. App.-Corpus Christi, July 22, 2005) (original proceeding).