Have a question that's just come up, and I sure would appreciate a little help. Defendant is convicted of misdemeanor DWI and sentenced to community supervision, and the matter is appealed and affirmed and mandate handed down. PDR is refused. Defendant filed for a writ of HC with the trial court, which was denied, and appeal of which is currently pending in the Court of Appeals. The trial court is insisting that defendant now fulfill the conditions of community supervision, but she has filed with the court of appeals a petition for mandamus to stay the enforcement of the judgment, relying on TRAP 25.2(g) that this appeal stays "further proceedings in the trial court," i.e., the trial court loses jurisdiction until the appeal of the habeas corpus matter is disposed of.
If that were true, every frlon in Texas would be on the streets. What is the appropriate response, beyond an application of TRAP 31.5 that because the judgment is now "final and conclusive," an application for HC doesn't stay its enforcement?

Also, perhaps the appropriate remedy for the defendant is to move for temporary relief under the pending appeal, per TRAP 52.10, rather than file for a writ of mandamus.

Your initial post is the answer. So is your second post.

JAS

This is a new trick that is circulating in the defense world.

Locally, a defendant was placed on probation and is now facing adjudication. To avoid the hearing, defendant has filed a writ, alleging double jeopardy.

The trial court denied the writ, and the defendant filed notice of appeal to court of appeals. Judge wanted to proceed to with adjudication hearing. Defendant argued that Rules of Appellate Procedure suspend trial court's authority until appeal is concluded.

The court of appeals agreed, but not based on the application of the Rules of Appellate Procedure. Instead, the court of appeals held that the judge must hold off holding the hearing until the appeal is completed to protect the double jeopardy right.

Rule 25.2(g) does not apply to appeals of writs. It applies to direct appeals. There is a separate set of rules for writs.

And you are right, if the appellate courts uphold the defendant's theory, every defendant will seek to suspend his sentence by filing a writ. That has never been the law.

If you want a copy of our arguments, contact Doug Arnold at the Williamson County DA's Office.

Thanks, all. I appreciate it.

Perhaps I didn't understand Rick's post. But your scenario appears different, John. That is you are talking deferred and he is talking straight C/S. Nevertheless, good to hear about the latest defense games.

JAS

Yes, my case is in a slightly different posture, but in both cases, the defendant is using (I assume) the relatively new CCP, art. 11.072 (authorizing writs for CS) to bootstrap their way into the Appellate Rules. Prosecutors predicted at the time that this was added that defendants would abuse it.

Yes, that 11.072 is a tricky little provision. I would have to consider employing the CCA cases on improper gamesmanship in an effort to stop this skullduggery in its tracks.

JAS

Can your judge add the conditions desired as conditions upon the defendant's appeal bond?