Christopher Bryan Wallace v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-02-00777-CR Christopher Bryan Wallace, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 01-079-K368, HONORABLE BURT CARNES, JUDGE PRESIDING M E M O R A N D U M O P I N I O N Christopher Bryan Wallace seeks appellate review of an order of the district court denying bail pending his appeal from a theft conviction. See Tex. Code Crim. Proc. Ann. art. 44.04(g) (West Supp. 2003). Because Wallace did not perfect his appeal to this Court, we must dismiss. The jury assessed Wallace's punishment in this cause at imprisonment for five years and a $10,000 fine. On November 26, 2003, the district court imposed sentence after granting the State's motion to cumulate this sentence with the sentence imposed in a Lampasas County case. See id. art. 42.08(a). That same day, the court denied Wallace's request for bail pending appeal, apparently on the ground that the cumulative total of the two sentences is ten years or more. See id. art. 44.04(b). Wallace filed a notice of appeal from the conviction, but he did not file a notice of appeal from the order denying bail. Instead, he has treated this matter as if it were an original proceeding in this Court. Article 44.04(g) provides expedited appellate review of trial court orders regarding bail pending appeal. An article 44.04(g) appeal is separate and distinct from the appeal of the underlying conviction and must be initiated by a separate notice of appeal. Ex parte Enriquez, 2 S.W.3d 362, 363 (Tex. App.--Waco 1999, no pet.); Margoitta v. State, 987 S.W.2d 611, 612 (Tex. App.--Waco 1999, no pet.); White v. State, 629 S.W.2d 262 (Tex. App.--Tyler 1982, no pet.); see Tex. R. App. P. 31.1. Because he did not file a notice of appeal from the order denying bail, Wallace did not invoke this Court's jurisdiction under article 44.04(g). Enriquez, 2 S.W.3d at 363; White, 629 S.W.2d at 263. Wallace may still seek relief by applying for a writ of habeas corpus. See Ex parte Spaulding, 612 S.W.2d 509, 511 (Tex. Crim. App. 1981); Enriquez, 2 S.W.3d at 363. The appeal is dismissed. __________________________________________ Mack Kidd, Justice Before Justices Kidd, Yeakel and Patterson Dismissed for Want of Jurisdiction Filed: January 16, 2003 Do Not Publish