Esteban R. Garcia v. The State of Texas--Appeal from 85th District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-95-285-CR

ESTEBAN R. GARCIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court # 42,357-85

O P I N I O N

Esteban Garcia attempts to appeal from two orders by the trial court: first, an order "granting" the State's extradition request and (2) an order setting Garcia's appeal bond at $125,000. However, because there is neither an application for nor a ruling on a writ of habeas corpus regarding the State's extradition request in the record, we conclude that we do not have jurisdiction over the first issue. We also conclude, again due to the absence of an application and ruling on a writ of habeas corpus, that he is not entitled to release on bail and his complaint regarding the court's ruling on his bond is moot. Therefore, we dismiss his appeal.

Acting on a request by Colorado Governor Roy Romer, Governor George W. Bush of Texas signed a warrant authorizing Garcia's arrest and extradition to Colorado. Tex. Code Crim. Proc. Ann. art. 51.13 (Vernon 1979). Apparently the State served the warrant on Garcia in the Brazos County jail. On August 11, 1995 the court convened an "extradition hearing" on the warrant. Although there was some discussion of an application for a writ of habeas corpus relating to the extradition at that hearing, on the record before us it appears that the court merely ruled that he would "grant the State's extradition request". Thus, on the record before us, Garcia has failed to properly challenge the Governor's warrant. Id. 10; Ex parte Chapman, 601 S.W.2d 380, 383 (Tex. Crim. App. [Panel Op.] 1980); McPherson v. State, 752 S.W.2d 178, 180 (Tex. App. San Antonio 1988, pet. ref'd, untimely filed); Martinez v. State, 688 S.W.2d 201, 202 (Tex. App. Corpus Christi 1985, no pet.). Therefore, we do not have jurisdiction over his attempted appeal from the extradition request. Id.

Article 55.13 does not provide a right to bond after an arrest pursuant to the Governor's Warrant. Ex parte Quinn, 549 S.W.2d 198, 200 (Tex. Crim. App. 1977); Ex parte Hassenpflug, 754 S.W.2d 835, 836 (Tex. App. Fort Worth 1988, no pet.). However, when the accused properly challenges the extradition by habeas corpus and appeals from an adverse ruling on that application, he is entitled to request an appeal bond under article 44.35. Tex. Code Crim. Proc. Ann. art. 44.35; Quinn, 549 S.W.2d at 200; Hassenpflug, 754 S.W.2d at 837. Because Garcia has not properly challenged the extradition, he is not entitled to appeal. Tex. Code Crim. Proc. Ann. art. 51.13, 10; Chapman, 601 S.W.2d at 383; McPherson, 752 S.W.2d at 180; Martinez, 688 S.W.2d at 202. Thus, he is not entitled to apply for an appeal bond. Quinn, 549 S.W.2d at 200; Hassenpflug, 754 S.W.2d at 836-37. Because he is not entitled to apply for an appeal bond, his complaints regarding the court's ruling on his application for such a bond are moot.

Without reference to the merits of Garcia's points of error, we dismiss this appeal for want of jurisdiction.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed November 6, 1996

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