                            NUMBER 13-09-00645-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                   EX PARTE: DANIEL RODRIGUEZ JR.


                       On appeal from the County Court
                          of Wharton County, Texas.


                         MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
             Memorandum Opinion by Chief Justice Valdez

      Appellant, Daniel Rodriguez Jr., appeals the trial court’s denial of his petition for a

writ of habeas corpus. We dismiss for want of jurisdiction.

                                     I. BACKGROUND

      Rodriguez filed a post-conviction petition for writ of habeas corpus seeking to set

aside a 1992 misdemeanor conviction for driving while intoxicated (“DWI”), which the State

later used in 2007, to enhance a subsequent DWI to the level of a third-degree felony. See

TEX . PENAL CODE ANN . § 49.04 (Vernon 2003), § 49.09(b) (Vernon Supp. 2009). Rodriguez

expressly filed his habeas application under Texas Code of Criminal Procedure article
11.09. See TEX . CODE CRIM . PROC . ANN . art. 11.09 (Vernon 2005) (providing that “[i]f a

person is confined on a charge of misdemeanor, he may apply to the county court judge

of the county in which the misdemeanor is charged . . . .”).

        Without conducting an evidentiary hearing, the trial judge entered an order denying

Rodriguez’s application for the writ without making any findings of fact or conclusions of

law. The trial court’s order stated, in pertinent part, “Having considered the pleadings and

exhibits, it is the order of the court that the application should be and hereby is DENIED.”

Rodriguez filed a notice of appeal. Because it was unclear from the trial court’s order

whether the trial court had considered the merits of Rodriguez’s application, we abated the

appeal and requested that the trial court make findings and conclusions addressing

whether it had ruled on the merits. Without conducting a hearing, the trial court found:

“That the [c]ourt determined from the facts stated in the application and the documents on

file that the appellant was manifestly not entitled to any relief and that no hearing on the

merits of the claim was necessary; therefore[,] there was no hearing on the merits of the

application[.]”1

                                               II. JURISDICTION

        The State moves to dismiss the appeal for want of jurisdiction. As a general rule,

no appeal lies from a trial court’s refusal to issue a writ of habeas corpus. Ex parte Noe,

646 S.W.2d 230, 231 (Tex. Crim. App. 1983); Ex parte Gonzales, 12 S.W.913, 914 (Tex.

App.–Austin 2000, pet. ref’d); see also Ex parte Reveles, No. 13-06-00143-CR, 2007 WL

2324002, at *1 (Tex. App.–Corpus Christi Aug. 16, 2007, no pet.) (mem. op., not

designated for publication). However, if the trial court reaches the merits of a habeas


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          After the trial court filed its findings of fact and conclusions of law, Rodriguez filed a docum ent with
this Court entitled, “Objection to the Trial Court’s Findings of Fact and Conclusion of Law.” W e deny all relief
sought in that docum ent.

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application, its ruling is appealable even if the trial court refused to issue the writ. Ex parte

Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991). There is a distinction between the

issuance of a writ of habeas corpus and determining the merits of the habeas corpus claim.

See id.; Ex parte Williams, 200 S.W.3d 819, 820 n.2 (Tex. App.–Beaumont 2006, no pet.);

see also Cid v. State, No. 13-00-325-CR, 2001 WL 1002481, at *2 (Tex. App.–Corpus

Christi June 21, 2001, no pet.) (not designated for publication).

       The writ is an order directed to anyone having a person in custody to
       produce the person at a time and place stated in the order, and to show why
       the person is held in custody. The trial court must grant the writ without
       delay unless it is manifest from the application, or some document annexed
       to it, that the party is entitled to no relief whatsoever. When a court decides
       the merits of the application, the court is considered to have issued the writ
       and has rendered a final judgment in the separate habeas corpus action.

Ex parte Jagneaux, No. 09-10-00160-CR, 2010 WL 2163779, at *1 (Tex. App.–Beaumont

May 26, 2010, no pet.) (internal citations omitted).

       The trial court denied Rodriguez’s application for a writ of habeas corpus without

holding a hearing. However, a trial court’s failure to explicitly issue a writ or hold a hearing

on the merits of the applicant’s claim is “inconsequential” “because, an ‘appeal can be had

from a district court order denying an applicant relief on the merits of his claims.’”

Villanueva v. State, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008) (quoting Ex parte

Hargett, 819 S.W.2d at 868-69). Thus, we must determine whether the trial court reached

the merits of Rodriguez’s habeas corpus application. See Ex parte Hargett, 819 S.W.2d

at 869.

       In Ex parte Hargett, the trial court in which habeas corpus relief was sought issued

an order in which it refused to issue the writ; however, the order then addressed the merits

of each allegation contained in the writ application and found each to be without merit. Id.

at 868. The Court of Criminal Appeals held that jurisdiction was conferred upon the Austin

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Court of Appeals because, although the trial court refused to issue the writ, it ruled on the

merits of the application. Id. at 869.

       Here, however, the trial court’s order, coupled with its findings of fact, does not

expressly set forth any rulings by the trial court on the substantive merits of Rodriguez’s

claims of relief. Moreover, our sister courts have held that “even where it is likely that the

trial court’s decision not to issue the writ was based, at least in part, on a determination that

appellant’s claims lacked merit, that alone does not entitle the appellant to an appeal.” Ex

parte Pool, 71 S.W.3d 462, 465 (Tex. App.–Tyler 2002, no pet.); Ex parte Miller, 931

S.W.2d 724, 725 (Tex. App.–Austin 1996, no pet.); see also Ex parte Florance, No. 05-10-

00688-CR, 2010 WL 2927487, at *1 (Tex. App.–Dallas July 28, 2010, no pet. h.) (mem.

op., not designated for publication). Because the trial court did not consider and resolve

the merits of Rodriguez’s habeas corpus application, we lack appellate jurisdiction. See

Ex parte Hargett, 819 S.W.2d at 868-69; see also Cid, 2001 WL 1002481, at *2 (holding

that no appellate jurisdiction exists where the trial court record is devoid of rulings on the

substantive merits of the habeas corpus application).

                                         III. CONCLUSION

       We dismiss Rodriguez’s appeal for want of jurisdiction.




                                                    ROGELIO VALDEZ
                                                    Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
23rd day of August, 2010.




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