Opinion issued February 21, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00300-CR
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CHARLES H. FOWLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1326997
MEMORANDUM OPINION
Appellant, Charles H. Fowler, attempts to appeal from the trial court’s order
denying the relief requested in his application for writ of habeas corpus. The State
has filed a motion to dismiss the appeal for want of jurisdiction. We grant the
motion and dismiss the appeal.
Background
On November 10, 2011, appellant filed an application for writ of habeas
corpus, claiming that his conviction for the misdemeanor offense of possession of
dangerous drugs in cause 1005770 is void. The trial court signed an order denying
relief on January 19, 2012. Appellant filed a motion for new trial on February 17,
2012 and a notice of appeal on March 16, 2012.
The State filed a motion to dismiss the appeal on January 3, 2013. In its
motion, the State argues that a motion for new trial does not extend the deadline
for filing a notice of appeal from an order denying relief in a habeas proceeding
and appellant’s notice of appeal, filed 57 days after the order was signed, was
therefore untimely.
Appellant filed a response on January 10, 2013. In his response, appellant
argues that this case is an original proceeding, not a criminal action, and his motion
for new trial therefore extended the deadline for filing a notice of appeal to 90 days
after the judgment was signed. Appellant alternatively argues that the trial court’s
order did not become final and appealable until March 16, 2012, when the trial
court signed the certification of appellant’s right to appeal.
Analysis
An application for a writ of habeas corpus challenging a conviction in a
misdemeanor case is governed by article 11.09 of the Texas Code of Criminal
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Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2005); Ex parte
Tarango, 116 S.W.3d 201, 202 (Tex. App.—El Paso 2003, no pet.). And, while a
habeas proceeding in Texas is considered to be separate from the criminal
prosecution, “[s]uch proceedings are categorized as ‘criminal’ for jurisdictional
purposes, and the Texas Rules of Civil Procedure do not ordinarily apply.” Ex
parte Rieck, 144 S.W.3d 510, 516 (Tex. Crim. App. 2004); see Aranda v. District
Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006); Tarango, 116 S.W.3d at 202–
03. Therefore, the time to perfect an appeal from an order in a habeas proceeding
is governed by Texas Rule of Appellate Procedure 26.2, not Rule 26.1. Compare
TEX. R. APP. P. 26.1 (governing deadline for filing notice of appeal in civil cases),
with TEX. R. APP. P. 26.2 (governing deadline in criminal cases).
Under Rule 26.2(a)(1), a notice of appeal must be filed within 30 days after
sentence is imposed or suspended in open court or after the trial court enters an
appealable order. TEX. R. APP. P. 26.2(a)(1). The deadline is extended to 90 days
after a sentence is imposed or suspended in open court if the defendant timely files
a motion for new trial. TEX. R. APP. P. 26.2(a)(2). The deadline is not extended,
however, when a motion for new trial is filed after the trial court enters an
appealable order that does not impose or suspend a sentence. See id.; Ex parte
Roberts, No. 14-08-00575-CR, 2008 WL 3940738, *1 (Tex. App.—Houston [14th
Dist.] Aug. 21, 2008, pet. ref’d) (not designated for publication); Ex parte
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Delgado, 214 S.W.3d 56, 58 (Tex. App.—El Paso 2006, pet. ref’d); Welsh v. State,
108 S.W.3d 921, 922 (Tex. App.—Dallas 2003, no pet.). Although an order
granting or denying relief in a habeas proceeding is an appealable order, it involves
neither imposition nor suspension of a sentence. See Delgado, 214 S.W.3d at 58;
Tarango, 116 S.W.3d at 203. Therefore, a motion for new trial filed after a trial
court denies habeas corpus relief does not extend the appellate timetable under
Rule 26.2(a)(2), and the appellant’s notice of appeal remains due within 30 days
after the trial court enters the order denying relief. See TEX. R. APP. P. 26.2(a)(1),
(2); Delgado, 214 S.W.3d at 58; Welsh, 108 S.W.3d at 923.
Here, the trial court entered an order denying appellant’s request for habeas
corpus relief on January 19, 2012. Appellant’s notice of appeal was therefore due
on February 21, 2012.1 See TEX. R. APP. P. 4.1(a), 26.2(a)(1). Appellant filed his
notice of appeal on March 16, 2012—24 days after the deadline. Because
appellant’s notice of appeal was not timely, we lack jurisdiction over this appeal.
See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
918 S.W.2d 519, 523 (Tex. Crim. App. 1996); Delgado, 214 S.W.3d at 58; Welsh,
108 S.W.3d at 923.
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Contrary to appellant’s argument, the order denying relief was final and
appealable when entered by the trial court, regardless of when the trial court
executed a certification of appellant’s right to appeal. See TEX. R. APP. P.
25.2(a)(2), 25.2(d).
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Accordingly, we dismiss the appeal. See TEX. R. APP. P. 43.2(f). We
dismiss any pending motions as moot.
PER CURIAM
Panel consists of Justices Keyes, Sharp, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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