Dwayne Andre Pierson v. State ( 2007 )

Dismissed and Memorandum Opinion filed November 8, 2007

Dismissed and Memorandum Opinion filed November 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00912-CR

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EX PARTE DWAYNE ANDRE PIERSON

On Appeal from the County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 1303426

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a letter, signed September 6, 2007, in which the judge of County Criminal Court at Law No. 5 declined to take jurisdiction of the application for writ of habeas corpus, filed by Dwayne Andre Pierson.  We dismiss the appeal for lack of jurisdiction.

In cause number 1303426, in County Court at Law No. 5, appellant was convicted of misdemeanor assault and sentenced to ten months= confinement in the Harris County Jail.  Pierson appealed this conviction and a panel of this court affirmed the conviction by opinion and judgment issued on February 8, 2007.  No motion for rehearing or petition for discretionary review was filed and the mandate issued on April 6, 2007. 

According to the record, Pierson filed applications for writ of habeas corpus in the trial court on December 22, 2006, May 1, 2007, and June 22, 2007.  Following the filing of each application, the trial judge issued a letter to Pierson stating that she was declining jurisdiction and was returning Pierson=s original copy of the application. The latest letter from the trial judge was dated September 6, 2007.  On October 5, 2007, Pierson filed a notice of appeal from the trial court=s decision to decline jurisdiction of his most recent application for writ of habeas corpus.

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.  Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991); Ex parte Moorehouse, 614 S.W.2d 450, 451 (Tex. Crim. App. 1981); Ex parte Mayes, 538 S.W.2d 637, 638-39 (Tex. Crim. App. 1976).  An examination of the record in this case reveals that the trial judge declined to take jurisdiction over the application for writ of habeas corpus without hearing evidence or argument regarding Pierson=s claims and without considering the merits of those claims. Because the court did not consider and resolve the merits of Pierson=s habeas corpus application, Pierson has no right to appeal the trial court=s refusal to take jurisdiction over his application.^[1]

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 8, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).       

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^[1]  The court noted in Ex parte Hargett that when a trial court declines to consider an application for writ of habeas corpus, the applicant=s remedies are limited.  819 S.W.2d at 868.  One remedy available is to present the application to another court of competent jurisdiction.  Id.