Opinion issued August 30, 2012




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                           NO. 01-10-00798-CR
                         ———————————
                      CHARLES H. FOWLER, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 262nd District Court
                           Harris County, Texas
                        Trial Court Case No. 970505



                       MEMORANDUM OPINION

      This appeal is from the district court’s August 4, 2010 denial of appellant’s

application for a writ of habeas corpus filed the previous day, August 3, 2010.1 In



1
      Fowler’s underlying conviction was for a 2003 offense of theft, punishable
      as a Class B misdemeanor based on a previous theft conviction. Fowler
his brief, appellant Charles H. Fowler states that no writ of habeas corpus ever

issued. The clerk’s record reveals that no evidentiary hearing was held and no

argument was heard.

      There is no right of appeal from the refusal to issue a writ of habeas corpus

when the trial court did not consider and resolve the merits of the application. See

Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.—Houston [1st Dist.] 2004, no

pet.). The Clerk of this Court notified the parties that they had until September 30,

2011 to submit any additional briefing; thereafter, the appeal was subject to

dismissal without further notice.

      Fowler responded (1) that the State has not argued this Court lacks

subject-matter jurisdiction and (2) that this proceeding is not an appeal from a

habeas-corpus proceeding, but instead an appeal from the September 17, 2003

judgment of conviction because “[t]the trial court merged appellant’s recent

application for writ of habeas corpus INTO the substantive criminal case and then


      plead guilty without an agreed recommendation, and the trial court assessed
      punishment at six months’ confinement. Fowler claims his habeas-corpus
      application is governed by Code of Criminal Procedure article 11.07. See
      TEX. CODE CRIM. PROC. ANN. art. 11.07 (West Supp. 2011). That article,
      however, provides procedure for postconviction felonies. The applicable
      procedural provision for postconviction misdemeanors is article 11.09. See
      TEX. CODE CRIM. PROC. ANN. art. 11.09 (West 2005); see also TEX. CODE
      CRIM. PROC. ANN. art. 11.05 (West 2005) (granting jurisdictional power to
      certain courts—including district court—to issue writ of habeas corpus);
      State ex rel. Rodriguez v. Onion, 741 S.W.2d 433, 434 (Tex. Crim. App.
      1987).
                                         2
certified ‘defendant’s right of appeal,’” which Fowler claims “RESURRECTED”

the original “criminal matter.”2     Fowler contends the trial court abused its

discretion in filing the application under the case number of the underlying

conviction and states that the certification of defendant’s right of appeal is

“defective” because it incorrectly states he can now appeal his September 17, 2003

judgment of conviction.

      Fowler correctly notes that the proper avenue for relief from the denial of

applications for writs of habeas corpus is to file a petition for a writ of mandamus

in the court of appeals. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim.

App. 1991) (superseded by TEX. CODE CRIM. PROC. ANN. art. 11.072, §§ 4, 8

(West 2005) to extent that applicant seeks relief from order or judgment of

conviction ordering community supervision). His claims that the trial court and

clerk are preventing him from pursuing mandamus relief must, therefore, be

addressed in a mandamus proceeding, not this appeal.




2
      Fowler is correct that the trial court signed a Texas Rule of Appellate
      Procedure 25.2(d) certification of defendant’s right of appeal stating, “[T]his
      criminal case is not a plea-bargain case, and the defendant has the right of
      appeal.” We note that Fowler was not a “defendant” in the trial court, but
      was an “applicant.” See TEX. R. APP. P. 3.2 (defining terminology in
      criminal cases)
                                         3
      Notwithstanding the trial court case number that was assigned to his

application for a writ of mandamus, we treat this case as an appeal of the denial of

the application filed under Code of Criminal Procedure article 11.09. Following

longstanding authority, we dismiss the appeal for want of jurisdiction. See, e.g.,

Purchase, 176 S.W.3d at 407.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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