James Wesley McCartney v. The State of Texas--Appeal from 51st District Court of Tom Green County (majority)
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-12-00522-CR James Wesley McCartney, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NOS. CR-92-0532-A & CR-92-0533-A, THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING MEMORANDUM OPINION James Wesley McCartney seeks to appeal the district court s order denying his Motion for Leave to File a Post Conviction Application for Habeas Corpus Relief Pursuant to Article V, Section 8 of the Texas Constitution. We dismiss the appeal. The district court s order denying his motion for leave to file a writ application did not address the merits of McCartney s writ application. Thus, because the district court did not rule on the merits of his application, the order cannot be appealed. See Ex parte Villanueva, 252 S.W.3d 391, 394 (Tex. Crim. App. 2008) ( Only when a hearing is held on the merits of an applicant s claims and there is a ruling on the merits of the claims may a losing party appeal. ); Ex parte Hargett, 819 S.W.2d 866, 869 (Tex. Crim. App. 1991) (habeas corpus applicant may only appeal denial of relief on merits); see also Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex. App. Austin 2000, pet. ref d). Accordingly, we dismiss the appeal for lack of jurisdiction. __________________________________________ J. Woodfin Jones, Chief Justice Before Chief Justice Jones, Justices Rose and Goodwin Dismissed for Want of Jurisdiction Filed: August 22, 2012 Do Not Publish 2
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