Eugene E. Bolinger, Jr. v. The State of Texas--Appeal from Co Crim Ct at Law No 11 of Harris County

Opinion issued October 12, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00643-CR

EUGENE EDWARD BOLINGER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 11

Harris County, Texas

Trial Court Cause No. 0838257

MEMORANDUM OPINION

Appellant, Eugene E. Bolinger, appeals the denial of his application for a post-conviction writ of habeas corpus. Appellant argues that Harris County Criminal Court at Law Number 11 erred when it declined to take jurisdiction over his habeas application. We dismiss the appeal for lack of jurisdiction.

Background

In cause number 882461, in the 174th District Court of Harris County, Texas, appellant was convicted of the felony offense of driving while intoxicated (third offense) and sentenced to 60 years confinement. In assessing punishment, the jury found two enhancement allegations to be true, one of which was a 1985 misdemeanor DWI conviction in Harris County Criminal Court at Law Number 11.

On December 7, 2004, appellant applied for a writ of habeas corpus in County Criminal Court at Law Number 11, complaining that he was denied his right to a jury trial in his 1985 conviction in that court. He further argued that he was restrained by the 1985 conviction to the extent it subjected him to enhanced punishment in a subsequent prosecution. Appellant based his right to habeas corpus relief on Articles 11.05 and 11.09 of the Texas Code of Criminal Procedure. Without hearing evidence or argument regarding appellant s claim, the County Criminal Court declined to take jurisdiction over appellant s application for writ of habeas corpus. Jurisdiction

There is no right of appeal from a refusal to issue a writ of habeas corpus when the trial court did not consider and resolve the merits of the application. See Ex Parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 2004); Purchase v. State, 176 S.W.3d 406, 407 (Tex. App. Houston [1st Dist.] 2004, pet. ref d); Ex Parte Okere, 56 S.W.3d 846, 850 (Tex. App. Fort Worth 2001, pet. ref d). By contrast, if the trial court reaches the merits of a habeas application, its ruling is appealable even if the trial court refused to issue the writ. Ex Parte Hargett, 819 S.W.2d at 869. The crucial question is, thus, not whether the trial court issued the writ, but whether the court considered and resolved the merits of the petition. // See id. at 868; see also Purchase, 176 S.W.3d at 407; Okere, 56 S.W.3d at 850.

An examination of the record in this appeal reveals that the trial court declined to take jurisdiction over the application for writ of habeas corpus 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 appellant has no right to appeal the trial court s refusal to take jurisdiction over his application.

Accordingly, we dismiss the appeal for lack of jurisdiction.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.