IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 25, 2004
______________________________
MICHAEL GLEN SCOTT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. W-30,473-01-B; HONORABLE SAMUEL KISER, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONIn November 2003, appellant Michael Glen Scott filed a notice of appeal challenging his 1996 conviction and various motions seeking DNA testing under article 64.01 of the Texas Code of Criminal Procedure. By opinion dated January 27, 2004, this Court dismissed the purported appeal for want of jurisdiction and rendered his motions moot. In our opinion, we explained that an out-of-time appeal may be granted by the Texas Court of Criminal Appeals pursuant to article 11.07 of the Texas Code of Criminal Procedure. We further noted that a request for DNA testing must be presented to the convicting court, i.e., the 181st District Court of Potter County.
Attempting to follow a portion of this Court's instructions, appellant filed a notice for an out-of-time appeal requesting permission for DNA testing together with a motion for DNA testing with the District Clerk of Potter County on March 9, 2004. Despite both documents being directed to the attention of the 181st District Court, the district clerk erroneously forwarded them to this Court.
A trial court's finding under article 64.03 or 64.04 of the Texas Code of Criminal Procedure is appealable to a court of appeals except that in a capital case the appeal is to the court of criminal appeals. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Pamph. Supp. 2004). However, where the trial court has not ruled on a request for DNA testing and no appealable finding has been made, an appellate court has no jurisdiction to entertain a motion for DNA testing. Fry v. State, 112 S.W.3d 611, 613 (Tex.App.-Fort Worth 2003, pet. ref'd).
We conclude that by mailing his "Notice of Out of Time Appeal" and "Chapter 64.01 Motion for Forensic D.N.A. Testing" for filing with the District Clerk of Potter County, appellant was attempting to proceed in accordance with our opinion of January 27, 2004. Thus, we direct the Clerk of this Court to forward appellant's documents to the Potter County District Clerk for filing and further action in accordance with applicable rules and principles of law. (1)
Accordingly, this proceeding is dismissed for want of jurisdiction.
Don H. Reavis
Justice
1. The Clerk of this Court shall make copies of Scott's documents to be retained in the appellate record of this cause.
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NO. 07-10-00058-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
DECEMBER 22, 2010
GENEKE ANTONIO LYONS, APPELLANT
v.
LYNN SWITZER, IN HER CAPACITY AS 31ST JUDICIAL DISTRICT ATTORNEY, TROOPER JASON HENDERSON, THE TEXAS DEPARTMENT OF PUBLIC SAFETY AND THE STATE OF TEXAS, APPELLEES
FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NO. 11,808; HONORABLE STEVEN RAY EMMERT, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Geneke Antonio Lyons, appeals the trial courts granting of a summary judgment and plea to the jurisdiction in favor of each appellee, Lynn Switzer, Jason Henderson, the Texas Department of Public Safety, and the State of Texas. We affirm.
Factual and Procedural Background
This case arose out of the seizure of $106,251.91 by Trooper Jason Henderson of the Texas Department of Public Safety. The factual background for the ensuing petition filed by Lyons is set forth in detail in this Courts opinion in Lyons v. Henderson, No. 07-06-0425-CV, 2008 Tex.App. LEXIS 3609 (Tex.App.Amarillo May 19, 2008, no pet.) (mem. op. not designated for publication)[1] and we refer the parties to that discussion. See id. at *1-*3. In that opinion, we affirmed the trial courts determination that it lacked subject matter jurisdiction over Lyonss claim, but reversed the trial courts dismissal of Lyonss action with prejudice and remanded the case back to the trial court to afford Lyons a reasonable opportunity to amend his pleadings in order to correct the jurisdictional defect. Id. at *11.
Lyons filed an amended pleading on August 19, 2008. Lyonss amended pleading added Lynn Switzer, in her official capacity as 31st Judicial District Attorney, an action for declaratory judgment, an allegation of deprivation of Lyonss Fifth Amendment rights under the United States Constitution, a claim of violation of Lyonss rights under article 1, section 19, of the Texas Constitution, and a general claim for damages pursuant to section 104.002 of the Texas Civil Practice and Remedies Code. The appellees each filed a plea to the jurisdiction and a motion for summary judgment. Lyons also filed a motion for summary judgment and objected to the summary judgments filed by appellees. The trial court granted the appellees pleas to the jurisdiction and summary judgments. This appeal followed.
Lyonss appeal asserts a total of nine different issues. Because of our disposition, we only address the issue of jurisdiction. It is noteworthy to understand the limited purpose for which we remanded this matter to the trial court, which was to allow Lyons the opportunity to amend his pleadings to demonstrate that he could cure the jurisdictional deficiency apparent in his original pleading. We have determined that he has not cured the jurisdictional deficiency and will, therefore, affirm the judgment of the trial court.
Subject Matter Jurisdiction
Initially, we observe that our opinion in Lyons I resulted in a remand limited to allowing Lyons the opportunity to amend his pleadings to cure the jurisdictional defect in his original petition. Id. Lyonss amended pleading did not address the fact that the res, the $106,251.91 seized by Henderson, was not in the possession of the State at the time he commenced his suit. Thus, to the extent that Lyons continues to request the trial court to return the res to him, the court lacks jurisdiction. See One Hundred Ninety-one Thousand Four Hundred Fifty-two and no/100 Dollars v. State, 827 S.W.2d 430, 433 (Tex.App.Corpus Christi 1992, writ denied) (release or removal of the res from control of the court will terminate jurisdiction). As stated previously, the court in this case never had control of the res. Since forfeiture is an in rem proceeding, the courts jurisdiction is predicated on control over the res. See Costello v. State, 774 S.W.2d 722, 723 (Tex.App.Corpus Christi 1989, writ denied). However, the general rule is subject to an exception when the res may have been removed from the control or custody of the court accidentally, fraudulently, or improperly. Id. at 724. Neither Lyonss pleading nor the evidence in the record indicate that any of the exceptions apply.[2] Therefore, unless Lyonss amended pleading establishes that the turnover was improper, his causes of action still suffer from a jurisdictional defect.
Lyonss cause of action for declaratory relief suffers from the same jurisdictional infirmity. Lyons seeks declaratory judgment that the failure of the named appellees to comply with the strict requirements of Article 59.01, et seq., Tex. Code of Crim. Proc., shows that Lyons is entitled to return of the res. See Tex. Code Crim. Proc. Ann. ch.59 (West 2006 & Supp. 2010).[3] This allegation does nothing more than recast the original action as a declaratory judgment action seeking a declaration that the same statutory scheme as was argued in the original proceeding, Chapter 59, invalidates the turnover of the res to the Drug Enforcement Administration (DEA). See One Hundred Ninety-one Thousand Four Hundred Fifty-two and no/100 Dollars, 827 S.W.2d at 433.
Therefore, because Lyonss alleged constitutional impropriety relates to the potential forfeiture rather than the turnover of the res to federal authorities, none of the Costello exceptions apply. Consequently, the trial court was without jurisdiction to address these alleged constitutional violations.
Conclusion
Because the trial courts ruling on jurisdiction was correct, we affirm the judgment entered by the trial court in all respects.
Mackey K. Hancock
Justice
[1] We will refer to this 2008 opinion as Lyons I.
[2] Appellant does mention the exceptions in his brief, however, nowhere in his pleadings does he assert that the accident or fraud exceptions apply to the facts of this case.
[3] Further reference to the Texas Code of Criminal Procedure will by reference to art. ___, article ____, or Chapter ___.