Opinion
No. 05-08-01440-CR
Opinion Filed January 9, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 47458.
Before Justices MOSELEY, RICHTER, and FRANCIS. Opinion By Justice MOSELEY.
OPINION
On October 27, 2008, Carl Raymond Dolan filed a notice of appeal and motions with the Court requesting leave to file the notice of appeal and to "appeal jurisdiction and adverse decision of dismissal of appeal." On November 10, 2008, appellant filed additional motions requesting extensions of time to file a docketing statement and the trial court's certification of his right to appeal. On November 24, 2008, appellant tendered his docketing statement and a motion requesting the trial court be compelled to provide certification of his right to appeal. In his motion to appeal jurisdiction, appellant relates that "in approximately May of 2005." he appealed the trial court's order denying DNA testing, that the appeal was transferred to the Eleventh Court of Appeals, and that the Eleventh Court of Appeals dismissed the appeal on October 9, 2008 because it does not have jurisdiction over appeals from Grayson County. Appellant contends this Court "has abused its discretion by interfering with an appeal through the act of transferal of an appeal that was brought to obtain material biological evidence that could have provided proof that this Appellant did not commit the charged offense in Grayson County, Texas." Appellant further asserts that "the inadvertent filing of the appeal in the Eleventh Court of Appeals jurisdiction was brought about by the Fifth Court of Appeals intentional act of transfering and interfering with the appeal process, by transfering the appeal brief to an appellate court that had no jurisdiction to entertain this appeal. It is evidence the Fifth Court of Appeals has abused its discretion and intentionally delayed any action that was to be taken in a favorable manner on this appeal [sic]." A review of the case databases of our Court and the Eleventh Court shows appellant appealed his Grayson County conviction for aggravated sexual assault in 2000. The case was assigned cause number 05-00-01487-CR. On October 2, 2000, the Fifth Court transferred the appeal to the Eleventh District Court of Appeals. The Eleventh Court affirmed the trial court's judgment. See Dolan v. State of Texas, No. 11-00-00306-CR (Tex.App.-Eastland, Sept. 20, 2001, no pet.) (not designated for publication). The Eleventh Court issued mandate on February 11, 2002. On May 14, 2008, the trial court issued its order denying DNA testing which also incorporated findings of fact and conclusions of law. (The trial court found that the evidence appellant wanted to test had been destroyed by the Sherman Police Department in 2003). Appellant did not appeal the trial court's order to this Court. Instead, as the Eleventh Court relates in its October 9, 2008 opinion, appellant filed a pro se brief, pro se notice of appeal, and pro se motion to file the notice of appeal in the Eleventh Court of Appeals. See Dolan v. State of Texas, No. 11-08-00234-CR (Tex.App.-Eastland, Oct. 9, 2008) (per curiam) (not designated for publication). The clerk of the Eleventh Court wrote a September 19, 2008 letter to the parties requesting a response from appellant showing why the Eleventh Court would have jurisdiction over this appeal from Grayson County. See id. According to the Eleventh Court, appellant responded to the letter and explained that he had filed his appeal in the Eleventh Court because his underlying appeal of his conviction had been transferred there. Id. Because the appeals from the criminal conviction and the DNA proceeding are separate matters, the Eleventh Court concluded it lacked jurisdiction over appellant's appeal and dismissed the appeal. See id.; Tex. Gov't Code Ann. § 22.201(f), (l) (Vernon Supp. 2008) (apportioning jurisdiction among district courts of appeals). Appellant may not now turn to this Court for relief. Appellant's October 27, 2008 notice of appeal to this Court-appealing the trial court's May 14, 2008 order denying DNA testing-is too late. See Tex. R. App. P. 26.2(a)(1) (setting time limitations for filing notice of appeal). Accordingly, we have no jurisdiction to entertain appellant's appeal. We deny relief on all pending motions. We dismiss the appeal for want of jurisdiction.
Appellant makes a similar admission in his November 24, 2008 pro se docketing statement filed in this Court in which he relates he filed his appeal of the DNA ruling in the Eleventh Court because his underlying appeal in this Court in 2000 was transferred there.