BOWERS v. <<

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Court of Appeals of Texas,Dallas.

Ex Parte Nathan BOWERS.

No. 05-00-01351-CR.

Decided: January 30, 2001

Before Justices LAGARDE, FITZGERALD, and RICHTER. John H. Carney,John H. Carney & Associates, P.C., Dallas, for Appellant. William T. (Bill) Hill, Jr., Karen R. Wise, Asst. Dist. Atty., Dallas, for State.

OPINION

Nathan Bowers appeals the trial court's order denying his application for writ of habeas corpus.   In two issues, appellant complains that the trial court erred by not granting his request for a hearing on the writ application and by not granting his writ on double jeopardy grounds.   We dismiss the appeal for want of jurisdiction.

 There is a distinction between the issuance of a writ of habeas corpus and the granting of relief on the claims set forth in an application for that writ.  Ex parte Hargett, 819 S.W.2d 866, 869 (Tex.Crim.App.1991).   An applicant cannot appeal from a trial court's refusal to issue or grant a writ of habeas corpus, but may appeal the denial of relief on the merits of the application.   See Hargett, 819 S.W.2d at 868.   Whether an order can be appealed is not determined by the form of the order alone;  we may consider the entire record.   See Nichlos v. State, 158 Tex.Crim. 367, 255 S.W.2d 522, 526 (1952) (op. on reh'g).

 Here, appellant attempts to appeal the trial court's order denying his application for writ of habeas corpus.   Neither the order-nor anything else in the record before us-reflects that the trial court considered the merits of appellant's petition.   Therefore, we dismiss this appeal for lack of jurisdiction.   See Ex parte Miller, 931 S.W.2d 724, 725 (Tex.App.-Austin 1996, no pet.) (holding that the trial court's denial of Miller's application for writ of habeas corpus amounted to a refusal to issue the writ).

Opinion By Justice Lagarde

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