Ex Parte Young

257 S.W.3d 276, 2008 Tex. App. LEXIS 2736, 2008 WL 1746585

• Court: Court of Appeals of Texas
• Decided: April 16, 2008
• Docket: 09-08-019 CR
• Status: Published

Opinions

OPINION

HOLLIS HORTON, Justice.

On December 17, 2007, the trial court refused to rule on Raymond Young’s application for writ of habeas corpus without conducting an evidentiary hearing or issuing the writ of habeas corpus. We questioned our jurisdiction over the appeal. Young filed a response in which he fails to establish that the order is appealable.

No appeal lies from the refusal to issue a writ of habeas corpus unless the trial court rules on the merits of the application. Ex parte Hargett, 819 S.W.2d 866 (Tex.Crim.App.1991); Ex parte Noe, 646 S.W.2d 280 (Tex.Crim.App.1988). In this case, the trial court did not address the merits of Young’s application. The trial court did not issue a writ of habeas corpus, nor did the court conduct an evidentiary hearing on the application for the writ. Compare Ex parte Silver 968 S.W.2d 367 (Tex.Crim.App.1998); Ex parte McCullough, 966 S.W.2d 529 (Tex.Crim.App.1998).

We hold we have no jurisdiction over this appeal. Accordingly, we dismiss the appeal for want of jurisdiction. The concurring opinion asserts that we should construe as a petition for writ of mandamus language contained in a document entitled “Motion to Leave 252nd Criminal District Court, to File Appellate Brief Regarding the Denial of Writ of Habeas Corpus Petition, Pursuant to Art. 11.08.” The document was never filed as an original proceeding with this Court, it does not comply with the requirements set forth in Rule 52 for a petition for writ of mandamus, and Young’s notice of appeal and brief do not inform this Court of any intention to invoke our mandamus jurisdiction.¹ See Tex.R.App. P. 52. In addition, after Young filed a pro se petition for habeas relief, the trial court appointed an attorney to represent him on his habeas claim, and his attorney subsequently filed a petition for a writ of habeas corpus on Young’s behalf. The trial court denied that application, and Young did not appeal that ruling.

Nothing in the record before us indicates that Young expressed a desire to discharge his habeas lawyer in the trial court. Furthermore, a defendant has no right to hybrid representation. Ex parte Taylor, 36 S.W.3d 883, 887 (Tex.Crim.App.2001). Therefore, even were we to follow the approach suggested in the concurring opinion and construe this proceeding as a petition for writ of mandamus, we would require Young to comply with the requirements of Rule 52 before addressing the merits of his petition, allow the State to file its response, and then determine whether Young had established that the trial court failed to perform a ministerial duty. See Tex.R.App. P. 52; State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001). Because Young filed an appeal and not an original proceeding, we conclude that our resolution on a jurisdictional basis is appropriate.

APPEAL DISMISSED.

1 . Young provided the document in question to this Court as an attachment to his notice of appeal. We did not docket the proceeding as a mandamus, and Young does not contest the manner in which we docketed the cause. Nevertheless, Young would not be prohibited from filing an original mandamus proceeding in this Court should he subsequently decide to do so.