ACCEPTED
03-14-00270-CV
7439127
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/19/2015 3:44:38 PM
JEFFREY D. KYLE
CLERK
NO.03-14-00270-CR
IN THE 3rd DISTRICT COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS AUSTIN, TEXAS
10/19/2015 3:44:38 PM
JEFFREY D. KYLE
Clerk
On appeal from the 207th District Court
of Comal County, Texas
MOTION FOR RECONSIDERATION
TO THE HONORABLE COURT:
CHRISTOPHER GRAHAM, appellant, makes this Motion for Rehearing
and in support of this motion shows as follows:
I. ISSUE PRESENTED
Appellant filed an Application for Habeas Corpus in the trial court where the
Court did not grant the writ or take the actions as requested by Appellant
concerning the application. Such contrary action constitutes a decision on the
merits of the application entitling Appellant to appellate review.
II. LEGAL STANDARD
1. A writ of habeas corpus is an order from a judge commanding a party, who
is alleged to be restraining the applicant in some way, to appear before the court
with the object of the alleged restraint and explain the reasons for the restraint.
Tex. Code Crim. Proc. art. 11.01; Ex parte Hargett, 819 S.W.2d 866, 868 (Tex.
Motion for Rehearing 1
Crim. App. 1991). The well-established rule of law is the when an application for
habeas corpus alleging unlawful restraint is presented to a judge who refuses to
issue a writ commanding the person having the applicant in custody to produce
him for a determination of the allegations in the application, no appeal lies. Ex
parte Hargett, 819 S.W.2d at 868; Ex parte Johnson, 561 S.W.2d 841, 842 (Tex.
Crim. App. 1978) (applying principle to article 11.09 writs); Ex parte Reese, 666
S.W.2d 675, 677 (Tex. App.--Fort Worth 1984, pet. ref'd) (applying principle to
article 11.07 writs). When the trial judge denies the writ, a petitioner's remedy is
to "present his application to another judge having jurisdiction." Ex parte Johnson,
561 S.W.2d at 842; see also Ex parte Hargett, 819 S.W.2d at 868.
2. Conversely, when a hearing is held on the merits of the applicant's claim for
relief and the trial court rules on the merits of that claim, the losing party may
appeal regardless of whether the trial court issued a writ of habeas corpus. Ex parte
Hargett, 819 S.W.2d at 868; Ex parte Reese, 666 S.W.2d at 677.
3. When trial court does not issue the requested writ of habeas corpus, and does
not dismiss the application either; but instead, undertakes to rule on the merits of
applicant's claim, the court of appeals has jurisdiction over applicant's appeal. Ex
parte Hargett, 819 S.W.2d at 869 (footnote omitted). Therefore, under Ex parte
Hargett, the crucial question is not whether the trial court did or did not issue the
writ, but whether the court did or did not consider and resolve the merits of the
Motion for Rehearing 2
petition. Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App.--Austin 2000, pet.
ref'd).
4. Here there was an application that was filed by the Movant, as well as a
subsequent request to either to set the application for hearing or make a ruling on
the motion. When the Court acted contrary to movant’s request, it effectively
denied Movant’s request for relief and the Court made a decision as to the merits
of Appellant’s application for Habeas Corpus, thereby entitling Movant to
appellate review. It is improper that this case be dismissed because of lack of
jurisdiction. Jurisdiction is proper in this case.
Respectfully submitted,
Lauren Graham & Associates PLLC
By:
CHRISTOPHER L. GRAHAM
Texas Bar No. 24047549
PO Box 226265
Dallas, Texas 75222
clgraham@lgi-law.com
CERTIFICATE OF SERVICE
19th
This is to certify that on 10/16/2015, a true and correct copy of the above
---
and foregoing document was served on the following parties: /s/ Christopher Graham
Motion for Rehearing 3
Comal County District Attorney via fax: 830-608-2008
Judge Gary Steel via fax: 830-608-2030
Judge Doug Shaver: 830-608-2030
WORD COUNT CERTIFICATE
Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this appellate brief contains
581 words. This is a computer-generated document created in Microsoft Word. In
making this certificate of compliance, I am relying on the word count provided by
the software used to prepare the document.
Motion for Rehearing 4