On June 14, 2005, the trial court denied Arthur S. Payton'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. Payton did not file a response.

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). We hold we have no jurisdiction over this appeal. Accordingly, it is ordered that the appeal be dismissed for want of jurisdiction.

APPEAL DISMISSED.

___________________________

HOLLIS HORTON

Justice

Opinion Delivered August 31, 2005

Do Not Publish

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