Ex Parte Robert Earl Bell

                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00443-CR
                               NO. 02-11-00444-CR
                               NO. 02-11-00445-CR


EX PARTE ROBERT EARL BELL


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      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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      In these cases charging Appellant Robert Earl Bell with aggravated

robbery and two capital murders, he appeals from the trial court’s order

dismissing his pretrial application for writ of habeas corpus in each case.

      In the applications below, Appellant contended that the State’s only

witness who can affirmatively place him at the scene of the capital murders is

Willie Bell. Appellant also contended that Willie is subject to prosecution as a

party but has not been charged with any offense arising out of the transaction on

      1
       See Tex. R. App. P. 47.4.
which Appellant’s capital murder indictments are based. Appellant complained

that by not charging Willie, the State will benefit at trial and on appeal from

having him treated as merely a possible accomplice as a matter of fact instead of

as an accomplice of law, violating Appellant’s rights to equal protection and due

process. In essence, Appellant complained of selective prosecution. Appellant

sought habeas corpus relief on the theory that otherwise, his rights to equal

protection would be undermined.       In the capital murder cases, he sought to

preclude the State’s prosecution. In the robbery case, Appellant requested that

the State be barred from using Willie Bell’s testimony at Appellant’s punishment.

      In the State’s oral and written responses below, it argued that the trial court

had no jurisdiction to grant habeas relief. After hearing argument on the issue of

its jurisdiction but refusing to allow evidence on the merits of Appellant’s habeas

applications, the trial court granted the State’s motion to dismiss Appellant’s

application for habeas corpus for want of jurisdiction in each case.

      Here, Appellant claims that the “sole issue before this Court . . . is the

propriety of whether the trial court can summarily dismiss an application for

habeas corpus . . . with no inquiry.” The State argues, among other things, that

Ex parte Hargett2 bars appeals from habeas applications dismissed on grounds

other than the merits. We agree. The Hargett court explained,

            It is well settled that no appeal can be had from a refusal to
      issue or grant a writ of habeas corpus even after a hearing.

      2
       

 (Tex. Crim. App. 1991).


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      However, the portion of that statement of law which we have
      emphasized can be confusing so, we will clarify it. In the cases
      which rely on that statement of law, the “hearing” which is being
      referred to is one which a court might hold in order to determine
      whether there is sufficient cause for the writ to be issued or whether
      the merits of the claim should be addressed. That type of hearing is
      not the same as one which is held to ultimately resolve the merits of
      an applicant’s claim. When a hearing is held on the merits of an
      applicant’s claim and the court subsequently rules on the merits of
      that claim, the losing party may appeal.3

      Because our review of the record corresponds with the parties’ views that

the trial court did not rule on the merits of Appellant’s habeas applications, we

dismiss these appeals for want of jurisdiction.4



                                                   PER CURIAM

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 29, 2011




      3
       

 (citations omitted).
      4
       See id.; Ex parte Noe, 

 (Tex. Crim. App. 1983); Ex
parte Cozzi, 

 (Tex. App.—Fort Worth 2004, pet. ref’d).


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