Ramiro Bugarin v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-200-CR

RAMIRO BUGARIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-863-CA

MEMORANDUM OPINION

Bugarin appeals from the "denial" of his application for writ of habeas corpus. The State, citing Ex parte Noe, 646 S.W.2d 230 (Tex. Crim. App. 1983), asserts that we have no jurisdiction to hear the appeal because the court did not issue the writ.

The court signed an order on June 20, 1994, stating, "came on to be considered the above WRIT OF HABEAS CORPUS, and the same is hereby DENIED." However, the record also reflects that the trial judge did not intend to issue the writ before hearing the application, that the court gave Bugarin an opportunity to show why a writ should be issued, and that Bugarin presented no evidence at the hearing. The judge concludes that Bugarin failed to show that he was entitled to issuance of a writ of habeas corpus.

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); Noe, 646 S.W.2d at 231.

Accordingly, having found that the court simply refused to issue the writ because Bugarin presented no reason to issue it, we dismiss the appeal for want of jurisdiction.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed October 26, 1994

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