Opinion
No. 10-03-00203-CR
Opinion delivered and filed November 10, 2004.
Appeal from the 249th District Court, Johnson County, Texas, Trial Court # 28988T. Appeal dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Steven C. Mason was convicted in 1993 of sexual assault. He was sentenced to twenty years in prison. On May 28, 2002, the trial court denied his motion for DNA testing. Thirty-four days later, Mason filed a letter asking the district clerk to grant him either an appeal or out-of-time appeal. In this letter, Mason complains only about his original conviction. Twenty-one days later, Mason filed a Request for Out of Time Appeal; again complaining only about his original conviction pursuant to a plea he contends was involuntary. Almost one year after the denial of his motion for DNA testing, Mason filed what he titled "Notice of Appeal." In the notice, he requested the appointment of new counsel for the purpose of appealing the denial of his DNA motion. To the extent Mason only wanted to appeal the denial of his DNA motion, either "notice" he filed was untimely. TEX. R. APP. P. 26.2(a). We have no jurisdiction over an appeal where the notice is untimely. Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996). To the extent Mason's first notice and the Request for Out of Time Appeal were applications for writ of habeas corpus, we have no original habeas jurisdiction in criminal law matters. Ex parte Hearon, 3 S.W.3d 650, 650 (Tex.App.-Waco 1999, no pet.). The Clerk of this Court notified Mason that we questioned our jurisdiction and gave him ten days to show us why this appeal should be continued. In a response to our correspondence dated July 22, 2004, we received a letter transmitting another request for an extension of time which blamed the need for the extension on his secretary's failure to "calenderize" the appeal. The jurisdictional issue was not addressed in the motion. We granted Mason's request to extend the filing of his brief, but we expressly stated, "The granting of Appellant's motion in no way extends the time for Appellant to respond to our last correspondence dated July 22, 2004, which questioned the Court's jurisdiction over this appeal." We received yet another motion for extension of time to file a brief on August 16, 2004, and the transmittal letter advised that the attorney had been hospitalized due to a heart attack. Again, the jurisdictional issue was not addressed in the letter or motion. In his most recent motion, Mason asked for an extension of time until October 16, 2004 to file his brief. That date has come and gone, and still no brief has been filed. Additionally, we still have received no response which addresses the issue of our jurisdiction. From the record before us, we have no jurisdiction of this appeal. Accordingly, Mason's motion for extension of time to file his brief is denied as moot, and this appeal is dismissed.
This is not to say that the letter to the district clerk, 34 days after the denial of the motion, was, in fact, a notice of appeal.