EX PARTE FROM A DISTRICT COURT OF CECIL D. SLAYTON GRAYSO

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-89-00759-CR
 
EX PARTE                                                 FROM A DISTRICT COURT
 
 
                                                                   OF
 
 
CECIL D. SLAYTON GRAYSON COUNTY, TEXAS
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES BAKER AND WHITTINGTON
OPINION PER CURIAM
AUGUST 17, 1989
        Cecil D. Slayton appeals from the trial court's order denying his petition for a writ of habeas corpus to allow him bail. Appellant, who was initially denied bail under article I, section 11a of the Texas Constitution, contended in his petition that he was entitled to bail under the provision of section 11a limiting incarceration without bail to sixty days. We conclude that we are without jurisdiction and dismiss this appeal.
        Appellant was arrested on October 6, 1988, for a felony offense. After a hearing, the trial court granted the State's motion to deny bail pursuant to article I, section 11a of the Texas Constitution. In May 1989, appellant brought the petition for writ of habeas corpus at issue here, seeking pretrial release on his own recognizance or on reasonable bond.
        Article I, section 11a, specifies three situations in which a person accused of a felony less than capital may be denied bail. TEX. CONST. art I, § 11a. If the accused is not tried within sixty days from the time of his incarceration, an order denying bail under section 11a is automatically set aside, unless a continuance is obtained upon the motion or request of the accused. Section 11a further provides that "the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for review of any judgment or order made hereunder . . . ." TEX. CONST. art. I, § 11a.
        In Clapp v. State, 639 S.W.2d 949, 952 (Tex. Crim. App. 1982), the Court of Criminal Appeals interpreted section 11a as conferring upon the Court of Criminal Appeals exclusive jurisdiction of appeals from orders denying bail under that section. Unlike Clapp, in the case before us, appellant does not appeal the trial court's initial order denying bail under article I, section 11a. Instead, this case involves an appeal from appellant's request for relief by way of writ of habeas corpus. We must determine whether this appeal falls within the exclusive jurisdiction of the Court of Criminal Appeals.
        The Court Criminal of Appeals has interpreted its appellate jurisdiction under article I, section 11a, as encompassing orders based on that section in addition to the initial order denying bail. In Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Crim. App. 1978), the Court concluded that it had jurisdiction under article I, section 11a, to hear an appeal of a later order refusing to set bail after sixty days had elapsed from the first order denying bail. In Westcott v. State, 651 S.W.2d 271 (Tex. Crim. App. 1983), the Court considered an appeal concerning a writ of habeas corpus filed by a person being held without bond under section 11a. Noting that the same trial judge who ordered the appellant held without bail also denied the habeas corpus relief, the Court of Criminal Appeals stated that it would "consider the matter as if [it] were a direct appeal as contemplated by § 11a . . . ." Westcott, 651 S.W.2d at 271.
        The record here does not show that the judge ruling on appellant's petition for writ of habeas corpus was also the judge who initially ordered him held without bail. Nevertheless, appellant's petition for writ of habeas corpus and his argument at his hearing were based primarily on the ground that he was entitled to release under the case law interpreting the sixty-day provision of article I, section 11a. The record suggests that the trial court's denial was based on the fact that, although they might not be formal continuances, stays resulting from other proceedings that appellant had initiated were the primary cause of the delay in bringing him to trial. We conclude that the trial court's order was an order under article I, section 11a, subject to the exclusive appellate jurisdiction of the Court of Criminal Appeals. This appeal is dismissed for want of jurisdiction.
 
 
 
                                                          PER CURIAM
                                                          
DO NOT PUBLISH
TEX. R. APP. P. 90
 
89-00759.F
 
 
File Date[09-06-89]
File Name[890759F]