Opinion
NO. 03-20-00305-CR
07-16-2020
Joseph Pastquinel Scott, Appellant v. The State of Texas, Appellee
FROM THE 426TH DISTRICT COURT OF BELL COUNTY, NO. 75561, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Joseph Pastquinel Scott seeks to appeal a 2016 judgment of conviction for aggravated sexual assault. See Tex. Penal Code § 22.021(a)(2)(B). His notice of appeal states that he wants to appeal his case "via a Chapter 64 DNA motion." The State has filed a motion to dismiss, arguing that this Court lacks jurisdiction over Scott's appeal for several reasons.
First, Scott's attempt to appeal the 2016 conviction is untimely. The trial court imposed sentence in open court on December 2, 2016. Therefore, a notice of appeal was due to be filed within 30 or 90 days of that date, making his notice of appeal filed in May 2020 untimely. See Tex. R. App. P. 26.2(a). A timely notice of appeal is necessary to invoke this Court's jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In addition, the trial court has certified that this is a plea-bargain case and that Scott has no right of appeal. See Tex. R. App. P. 25.2(a)(2), (d).
Second, to the extent that Scott's notice of appeal can be construed as a request for DNA testing under Article 64.01 of the Texas Code of Criminal Procedure, we lack jurisdiction over this matter. That statute provides a convicted person the opportunity to request forensic DNA testing. However, the request must be presented to the "convicting court." Tex. Code Crim. Proc. art. 64.01(a-1) ("A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion."). Scott was tried and convicted in the Bell County 426th District Court, not in the Third Court of Appeals, so any motion for DNA testing must be filed in the Bell County 426th District Court. The record before us does not contain any appealable order of the 426th District Court denying Scott relief under Article 64.01 that would vest us with jurisdiction over this matter.
Finally, to the extent that Scott's notice of appeal could also be construed as an application for habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure because Scott complains that his trial attorney was ineffective, he was denied his right to appeal, and his plea was involuntary, we lack jurisdiction over the matter. Only the Texas Court of Criminal Appeals may grant relief under Article 11.07 after a final felony conviction. Tex. Code Crim. Proc. art. 11.07, Sec. 3(a).
For all these reasons, we dismiss the appeal for want of jurisdiction and dismiss the State's motion as moot.
/s/_________
Edward Smith, Justice Before Justices Goodwin, Triana, and Smith Dismissed for Want of Jurisdiction Filed: July 16, 2020 Do Not Publish