
    Ex Parte O. A. Dugue
    No. 31,789.
    March 2, 1960
    Motion for Rehearing Overruled April 6, 1960
    
      
      C. C. Divine, Houston, for appellant.
    
      Dan Walton, District Attorney, Samuel H. Roberton, Jr., Assistant District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

Appellant, Oswald A. Dugue, sought relief from an Executive Warrant ordering his extradition to the State of California, which was denied after hearing by Judge Duggan in the Criminal District Court of Harris County. An appeal was prosecuted to this court and the judgment remanding relator to custody for extradition was affirmed. Mandate was issued November 27, 1959, and appellant is in custody.

Appellant is now also charged with felony swindling in Harris County, two complaints having been filed on January 5, 1960.

Application was thereafter presented to Judge Krichamer in Criminal District Court No. 4 of Harris County, his application for habeas corpus alleging that he was illegally confined and restrained of his liberty. The writ was granted.

The sheriff’s return showing that appellant was held by virtue of an alias capias issued on the mandate of affirmance of this court for extradition, the trial judge at the hearing-dismissed the application for habeas corpus except as it related to the felony cases pending in Harris County and denied the application for bail in those cases and appellant gave notice of appeal.

The dismissal of the application for habeas corpus left the record as though the application had been denied and no writ of habeas corpus had issued. Such an order is not appealable. Ex parte Noble, 146 Tex. Cr. R. 575, 176 S.W. 2d 951, and cases cited.

Appellant being in lawful custody for extradition, the trial judge correctly denied his application for release on bail in the felony cases pending in Harris County.

The judgment is affirmed.  