Opinion
No. 05-03-01488-CR.
Opinion issued March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-02018-03. Dismissed.
Before Justices JAMES, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
Stuart Alan Miller was convicted of two speeding offenses and a $99 fine was imposed in each case. Appellant's appeals were dismissed for want of jurisdiction. Appellant thereafter filed an application for writ of habeas corpus in the district court. The trial court, without a hearing, denied the request to issue a writ of habeas corpus and denied the petition in its entirety. This appeal followed. We directed the parties to address our jurisdiction over the appeal. Appellant responds that although the trial court judge denied issuance of the writ, he appeared to rule on the merits of appellant's complaint in doing so. Appellant asserts, however, that his claims may not be moot because he has paid the fines. The State responds that we do not have jurisdiction because appellant's notice of appeal was untimely, the trial court denied issuance of the writ, and the $99 fines do not meet our jurisdictional threshold. We conclude we lack jurisdiction over the appeal. The trial court signed its order denying issuance of the writ on August 8, 2003. The State contends, therefore, that appellant's notice of appeal was due by September 7, 2003. September 7, 2003, however, was a Sunday. Under rule 4.1(a), appellant had until the next day that was not Saturday, Sunday, or a holiday to file his notice of appeal, that is, by Monday, September 8, 2003. See Tex.R.App.P. 4.1(a), 26.2(a)(1). The State relies on appellant's certificate of mailing to show the notice of appeal was untimely. The certificate of mailing is dated September 8, 2003, and the notice of appeal was filed on September 11, 2003. Therefore, because of our disposition of the appeal, we will assume the notice of appeal was timely mailed to the District Clerk on September 8, 2003. See Tex.R.App.P. 9.2(b). Appellant argues that although the trial court denied the writ, the judge actually ruled on the merits of the complaints in doing so. The State disagrees, and contends nothing shows the judge addressed the merits of the habeas application. The crucial question in determining our jurisdiction is not whether the trial court did or did not issue the writ, but whether the court did or did not consider and resolve the merits of the petition. Ex parte Hargett, 819 S.W.2d 866, 869 (Tex.Crim. App. 1991); Ex parte Pool, 71 S.W.3d 462, 465 (Tex. App.-Tyler 2002, no pet.). If the trial court reaches the merits of the complaint, the ruling is appealable even if the trial court's order simply denies the writ. See Ex parte Hargett, 819 S.W.2d at 869. On the other hand, even if the trial court's decision not to issue the writ is based, at least in part, on a determination that the claims lacked merit, that alone does not entitle an appellant to appeal. See Ex parte Pool, 71 S.W.3d at 465; Ex parte Miller, 931 S.W.2d 724, 725 (Tex. App.-Austin 1996, no pet.) (per curiam). In this case, the trial court's order states:
After review of Applicant's application for writ of habeas corpus, and the State's Motion to Deny Issuance of a Writ of Habeas Corpus, the Court DENIES Applicant's request to issue a writ of habeas corpus. This Court further DENIES Applicant's Petition for Writ of Habeas Corpus in its entirety.Nothing in the order expressly rules on the merits of the complaints raised in the application for writ of habeas corpus. Therefore, the Hargett rule does not apply. See Ex parte Miller, 931 S.W.2d at 725. Because the trial court did not expressly rule on the merits of appellant's claims for relief in denying issuance of the application for writ of habeas corpus, we conclude we have no jurisdiction over the appeal. See Ex parte Hargett, 819 S.W.2d at 868; Ex parte Miller, 931 S.W.2d at 725. We dismiss the appeal for want of jurisdiction.
Cause nos. 05-02-01195-CR and 05-02-01196-CR, Stuart Alan Miller v. The State of Texas.
In the petition, appellant complained of his indigence. He mentions both the trial court proceedings and the appellate proceedings that were eventually dismissed. It is unclear whether appellant is complaining he was denied his right to appeal because of indigence or that the trial court proceedings violated Due Process because he was indigent. Appellant's prayer for relief, however, seeks to have the conviction set aside.