Ex Parte William Foster ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-405 CR ____________________

EX PARTE WILLIAM FOSTER

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 2012 (91660)

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MEMORANDUM OPINION ⁽¹⁾  

This is an appeal from the denial of an application for writ of habeas corpus seeking reduction in bail. The appeal presents two jurisdictional issues. On August 23, 2004, the trial court denied William Foster's application for writ of habeas corpus without conducting an evidentiary hearing or issuing the writ of habeas corpus. The notice of appeal is dated September 22, 2004, but was filed on September 23, 2004, and appears to have been hand delivered.   

Notice of appeal is due thirty days after the day the court enters an appealable order. Tex. R. App. P. 26.2(a)(1). Foster does not address the State's contention that the notice of appeal was not filed within the time permitted by the rules of appellate procedure, and he did not file a motion for extension of time to file notice of appeal. See Tex. R. App. P. 26.2(a)(1); 26.3. Assuming for the sake of argument that the notice of appeal was timely under the "mailbox rule," the denial of the application for writ of habeas corpus is not appealable. See Tex. R. App. P. 9.2(b); 31.1. No appeal lies from the refusal to issue writ of habeas corpus unless the trial court conducts an evidentiary hearing on the merits of the application. Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991); Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983). Foster admits no hearing was conducted, and the order makes no factual findings indicative of a ruling on the merits of the request for relief. If the trial court refuses to issue the writ of habeas corpus or denies a hearing on the merits, the applicant's remedy is "to present the application to another district judge having jurisdiction, or under proper circumstances, to pursue a writ of mandamus." Hargett, 819 S.W.2d at 868 (footnotes omitted).

The notice of appeal filed in this case failed to invoke our jurisdiction. Accordingly, the appeal is dismissed for want of jurisdiction.

APPEAL DISMISSED.

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STEVE MCKEITHEN

Chief Justice

Submitted February 3, 2005

Opinion Delivered February 16, 2005

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Tex. R. App. P. 47.4.