Ex Parte Devendra Prakash Babulal Bansal ( 2004 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-245 CR ____________________

EX PARTE DEVENDRA PRAKASH BABULAL BANSAL

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On Appeal from the County Court at Law No. 2 Jefferson County, Texas Trial Cause No. 198116

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MEMORANDUM OPINION ⁽¹⁾  

On May 3, 2004, the trial court denied Devendra Prakash Babulal Bansal'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. In response, Bansal filed a brief in which he argues that although his sentence for the misdemeanor conviction has been discharged, and he has been deported, he is under restraint by virtue of his conviction. The trial court has the power to issue a writ of habeas corpus in a misdemeanor case where the applicant is no longer confined, provided he is restrained in some manner by virtue of a void conviction. Ex parte Schmidt, 109 S.W.2d 480 (Tex. Crim. App. 2003). In this case, however, the trial court did not issue the writ.

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 (Tex. Crim. App. 1991); Noe v. State, 646 S.W.2d 230 (Tex. Crim. App. 1983). 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 Silva, 968 S.W.2d 367 (Tex. Crim. App. 1998); Ex parte McCullough, 966 S.W.2d 529 (Tex. Crim. App. 1998). It does not appear that the trial court considered the merits of the appellant's claims that his right of self-representation had been violated in the proceedings that resulted in his conviction. We hold we have no jurisdiction over this appeal. Accordingly, it is ordered that the appeal be dismissed for want of jurisdiction.

APPEAL DISMISSED.

PER CURIAM

Opinion Delivered December 22, 2004

Do Not Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.

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