Todd W. Altschul v. The State of Texas--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-97-279-CV

TODD W. ALTSCHUL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 2402-JC

MEMORANDUM OPINION

Appellant Todd W. Altschul appeals from the "denial" of his application for writ of habeas corpus which he filed under the authority of article V, section 8 of the Texas Constitution. Tex. Const. art. V, 8.

According to Altschul, the court signed an order on September 12, 1997, denying his application. When a judge refuses to issue a requested writ of habeas corpus or denies an applicant a requested hearing on the merits of his claim, the applicant's remedies are limited. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). He may seek the writ from another judge or, under proper circumstances, seek a writ of mandamus. Id. He may not, however, appeal unless the court denies the writ after hearing it on the merits. Id. In other words, we have no jurisdiction of a refusal to issue the writ when the merits are not addressed. See id.; Ex parte Renier, 734 S.W.2d 349, 357 (Tex. Crim. App. 1987); Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983).

The trial court refused to issue the writ after considering Altschul s application. Therefore, because the trial court did not address the merits of Altschul s application, we have no jurisdiction over this appeal. Accordingly, the appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Cummings, and

Chief Justice McDonald (Retired)

Dismissed for want of jurisdiction

Opinion delivered and filed October 15, 1997

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