NOS. 07-02-0446- CR 07-02-0447-CR 07-02-0448-CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A APRIL 22, 2003

______________________________ CECILIO SOSA VAR GAS, APPELLAN T

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 223 RD DISTRICT COURT OF GRAY COUNTY; NOS. 6352, 32, 689, 32,691; HONO RABLE LEE WATERS, JUD GE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ.
OPINION
Cec ilio Sosa Vargas appeal s from the trial court’s refusal to reduce bail in three
re l at ed ca se s. W e a ff i rm.1 Fur ther reference to a provision of the Code of Criminal Procedure w ill be by reference to “CCPart._.” 2 BACKGROUND
As the res ult of a t raffic ac cident, a ppellant w as char ged w ith m anslaughter ( tri al court cause num ber 63 52), driving with a suspended license (trial court cause num ber 32,691 ) , and fa ilure to stop and render aid (trial court cause num ber 32,689). Bail was initia llyset at $1,000,000 in the m anslaughter case, $2,500 in the driving with a suspended licen se case, and $100,000 in the f ailure to sto p an d re nde r aid case. Appellant applied to thetria l court forwrits of habeascorpus seeking reduction of bail in each case. A hearing w as h eld on August 20, 2002. During the hearing appellant’s counsel referenced Article 1, Section 11 of the Texas Co nstitution and Section 1.07 of the C ode of Criminal Proce dure 1 in urging that the initial bai l was ex cessive. The tria l court l owered appell ant’s bail in the manslaughter case to $250,000 and in the fai lure to stop and render ai d case to $25,000. No appeal w as taken.
On Septem ber 30, 2002, appellant filed m otions in e ach cas e tored ucebail pursuantto CCP art. 17.151. He alleg ed that he had been confined for a period i n excess of 90 days, the S tate was not ready

for tria l, and his bail must be reduced to an am ount he
cou ld pos t. On O cto ber 1, 2 002 , ap pella nt f

il ed am end ed applications for habeas writs seeking reduction of bail in each case on the basis that the am ounts set for bail during the August 20, 2002 hearing were ex cessive. The am ended applications for habeas writs (1) did not ref ere nceany

con stit utio nal p rov isio n or statutory pr ovisio n other than CCP3

art.17.151, (2) alleged that pursuantto CCP art. 17.151 the court was required to reduce appell ant’s bail to an amount he could afford, and (3) stated that no previous application had been m ade for

issuance of a writ of hab eas corpus seeking the relief requested in the amend ed m otion.
The trial court held a hear ing o n the m otions to reduce bail and am ended applications for writs of habeas corpus . The court inform ed the parties by letter that the mot ions to reduce bail and the am ended habeas applications were denied. W ritten orde rs denying each of appellant’s m otions to reduce bail were s igne d. No w ritten orde rs referencing the am ended applications for writs of habeascorpus were entered. Appellant filed notices of appe al in e ach of the three cases. The not icesof a ppe al re fer enc ed o nly the orders denying appellant’s m otions to reduce bail. Bytwo issues, appellant contends that (1) the bail set by the trial court in the aggregate amount of $325,500 for the thre e offenses was excessive and unr eas ona ble in violation of the Eighth Am endme ntto the U. S. Constitution and Article 1, Sections 11 and 13 of the Texas Co nstitution; and (2) the trial court erred in finding that appellant did not rebut the State’s pr

ima fa cie showing of readiness w ithin the 90 day period mandated by CCP art. 17. 151, and in failing to reduce appellant’s bail to the amount he could post.
ISSUE 1: EXCE SSIVEBAIL Byhis first issue, appellant urges that his bail was excessive, in vio lation of the Eighth Am endme nt to the U.S . Constitution and Article 1, Sections 11 and 13 of the Texas2 Further reference to a Rule of Appellate Procedure w ill be by refer ence to “TRAP _____.”

3 To the exten t appellant’s first issue is based on his am ended applications for writs of habeas corpus and the rights he claimed therei n under CCP art. 17.151, no r eference was ma de to the applications in his notices of appeal and no written orders were entered as to those a ppli cations. The trial court’s oral pronouncement refusin g to reduce appellan t ’s bail pursuant to the am ended habeas applications m ay not have been suf ficient to comprise appealab le order s under these recordsand given the pos ture of t his a ppe al. See TRAP 25.2(b)(2) and 26.2(a)(1); State v. Kibler , 874 S .W.2d 330, 332 (Te x.A pp.--Fort W orth 199 4, n o pe t.) . B eca useof o ur d ispo siti on o f ap pella nt’ s fi rst is sue, we d o not address sufficiency of the notices of appeal to invoke our j urisdiction as to the am ended habeas applications, whether appealable orders ex isted as to the am ended habeas appli cations, or the effect of any possible lack of appealable orders as to our jurisdiction over an issue based on the ap plications. 4 Constitution. In the Argum entand Authoriti es section of hi s brief he al so references CCP articles 1.09 and 17.151. N one of these baseswere urged by his motions tored ucebail
or am ended habeas applications in the trial court. His trial court motions and am ended habeas applications were based on CCP art. 17. 151. Appellant has not

preserv ed error for appellate review as urged in his first issue because his com plaint on appeal does not correlate to the m atters he urged at trial. See T EX . R. A PP . P. 33. 1(a); 2 Dixon v. S tate , 2 S.W.3d 263, 265 (Tex.Crim .App.1998); Thomas
v. State , 723 S .W.2d 696, 700 (Te x.C rim. App. 1 986). 3 W e overrul e appell ant’s first issue.

ISSUE 2: REFUSAL TO REDUC E BAIL PURSUA NT

TO CCP A RT. 17.151
Via h is s eco nd is sue , ap pella nt u rge s th at t he S tat e was n ot r ead y fo r tr ial in compliance with the time dictate of CCP art

. 17.151, w hich provides that a defendant w ho5

is accused of

a felony and who is de tained i n jail pendi ng trial must be released either on personal bond or

by reducing the am ount of bail required if the State is not ready for trial
w ithin 90 days fromthe com mencement of the defendant’s detention. Appellant urges that under Rowe v . State , 853 S.W.2d 581 (Tex .Crim .App. 1993), he w as e ntit led to ha ve b ail setat an am ount the evidence show ed he could make. On this direct appeal he prays that
we set aside the trial court’ s interlocu tory pretrial orders and enter an order that bail be set in the aggregate at $30,000.
We first m ust co nsider w hether w e ha ve j uris diction. See State v. Ro berts , 940 S.W.2d 655, 657 ( Te x. Cr i m. App. 1996). Jurisdiction is the power of the court over the subject ma tter of the case, co nveyed by statute or constitutional provision, id ., coupled with per sonal jurisdiction over the parties. See Flowers v. State , 935 S.W.2d 131, 13 4 n. 4 (Tex.Crim .App

. 1996) ; Fairfield v. State , 610 S .W.2d 771, 779 (Te x.C rim. App. 1 981). Courts address the question of j urisdiction sua sponte , because unless a co urt has j uris dict ion o ver

a m att er, its act ionsin the m atter are without v alidity. See Roberts , 940 S.W.2d at 657 n.2.
The right to appeal is conferred by the legislature, and generally a party m ay appeal only that wh ich the legislature has authorized. See Marin v. State , 851 S.W.2d 275, 278 (Tex.Crim .App. 1993); Olowosuko v. State , 826 S .W.2d 940, 941 (Te x.C rim. App. 1 992). Absent express authority, courts of appeals do not have jurisdiction to review interlocuto ry orders, see Ex

part e Apolinar v. State , 820 S .W.2d 792, 794 (Te x.C rim. App. 1 991),6

although som e narrow ex ceptions to such rule m ay exist. See W right v. State , 969 S.W.2d 588, 589(Tex .App. –Dallas 199 8, no pe t.).
The cou rtsof a ppe als h avespli tover whet her appellate j urisdiction ex ists in rega rd to direct appeals from pretrial bail rulings such as the onebefore us. Com pare Ramos v. S tate , 89 S.W .3d 122, 124-26 (Tex.App.–Corpus Chri sti 2002, no pe t.) (TRA P 31. 1 contem plates appeals of orders in bail proceedings) with Benford v. S tate , 994 S.W.2d 404, 409 (Tex.A pp.–W aco 1999, no pet.) (appellate jurisdiction does not ex ist over appeal from interl ocutory p ret ria l order increasing amount of bail because no s tatutory grant of jurisdiction) and Ex pa rte Shumake , 953 S.W.2d 842, 846-47 (Tex.App.–A ustin 1997, no pet.). See also W right , 969 S.W.2d at 589-90 (“This appeal does not fall within one of the exceptions to the rule, nor are we inclined to construe rule 31.1 of t he rules of appellate procedure to encom pass a direct appeal of a pretrial order revoking bond.”).
We lack a statutory grant of jurisdiction over this appeal. See Benfo rd , 994 S.W.2d at409. And, although TRA P 31 a ddres se s, in pa rt , a pp ea ls fr om ba il pr oc ee di ng s, we note that the Rules of Appe llat e Proce dure do not establish jurisdiction of courts of appeal s, see Olivo v. State , 918 S.W.2d 519, 523 (Tex.Crim .App. 1996), and canno t
cr e ate jurisdiction where no ne exists. See Sta te v. R ie we , 13 S.W.3d 408, 413 (Tex.Crim .App. 2000).
We concur w ith the conclusions reached by the Benfo rd and Shumake courts. We lack jur isdiction ove r this direc t appeal f

rom interlocuto rypretrial orders refusing to lower7

bail pursuant to C CP 17.151. A ppellant’s second issue is dism issed for want of jurisdiction.
CONCLUS ION
W e a ff i rm.
Phil Johnson Chief Justi ce Publish.