
Opinion issued October 14, 2004







     





In The
Court of Appeals
For The
First District of Texas




NO. 01-04-00747-CR




SAMUEL R. PURCHASE, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from 337th District Court
Harris County, Texas
Trial Court Cause No. 786286 




O P I N I O N Appellant, Samuel R. Purchase, appeals the denial of his application for a post-conviction writ of habeas corpus.  According to appellant’s application, he was
convicted of the felony offense of theft and placed on community supervision for four
years.  In both of his applications to the trial court and in his appeal to this court,
appellant bases his right to relief on Code of Criminal Procedure article 11.01 and
Texas Constitution article V, section 8.  See Tex. Code Crim. Proc. Ann. art. 11.01
(Vernon 1977); Tex. Const. art. V, § 8. 
          In its brief, the State contends that this appeal should be dismissed because we
lack jurisdiction.  We agree.
          There is no right of appeal from a refusal to issue the writ of habeas corpus
when the trial court did not consider and resolve the merits of the petition.  See Ex
parte Okere, 56 S.W.3d 846, 850 (Tex. App.—Fort Worth 2001, pet ref’d); Ex parte
Gonzales, 12 S.W.3d 913, 914 (Tex. App.—Austin 2000, pet. ref’d); cf. Ex parte
Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991) (holding that if trial court
reaches merits of habeas corpus application, its ruling is appealable even if trial court
refused to issue writ).  The crucial question to be answered is not whether the trial
court issued the writ, but whether the court considered and resolved the merits of the
petition.  See Okere, 56 S.W.3d at 850; Gonzales, 12 S.W.3d at 914.  An examination
of the record in this appeal reveals that the trial court “denied” the writ without
hearing evidence or argument regarding appellant’s claims, and without expressing
an opinion on the merits of those claims.  Because the court did not consider and
resolve the merits of appellant’s habeas corpus application, we hold that we are
without appellate jurisdiction.  See Gonzales, 12 S.W.3d at 914.  
          Accordingly, we dismiss the appeal for lack of jurisdiction.




                                                   Laura Carter Higley
                                                   Justice

Panel consists of Justices Nuchia, Hanks, and Higley

Publish. Tex. R. App. P. 47.2(b).
