11th Court of Appeals
Eastland, Texas
Opinion
Ex parte Volo Al Nelson
No. 11-04-00159-CR -- Appeal from Taylor County
Volo Al Nelson appeals the trial court=s denial of his pro se motion to Aset aside indictment as barred by time limitations.@ We dismiss the appeal.
In a multi-count indictment, appellant was indicted for possession of oxycodone, hydromorphone, and cocaine. In his motion, appellant argued that the indictment should be set aside because more than 180 days had Aexpired@ since the commencement of this criminal action. Appellant relied on the Speedy Trial Act, TEX. CODE CRIM. PRO. ANN. art. 32A.02 (Vernon 1989), to support his position that the trial court was required to set aside the indictment because Alimitations@ had Aexpired.@ The trial court denied the motion. Appellant filed a pro se notice of appeal stating that he was appealing the trial court=s Adecision to not set aside the indictment in the above cause number, by way of pretrial writ of habeas corpus.@
On appeal, appellant raises the issue of double jeopardy. Appellant is apparently raising that contention because film canisters containing hydromorphone, oxycodone, and cocaine were introduced as State=s exhibits at the sentencing phase of his trial for possession with the intent to deliver heroin.[1] The record from that proceeding reflects that these items were found in appellant=s car after his arrest for the possession of heroin offense.[2] However, appellant did not present his double jeopardy argument to the trial court, and the record before this court does not reflect that appellant filed a pretrial writ of habeas corpus.[3]
The issue appellant did present to the trial court and the issue in the order that he attempts to appeal is the denial of his motion to dismiss the indictment pursuant to the Speedy Trial Act. The Court of Criminal Appeals held that the Speedy Trial Act, Article 32A.02, was unconstitutional in Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987). Therefore, the statutory relief that appellant sought in the trial court -- the dismissal of the indictment -- is no longer available.[4]
The trial court=s May 26, 2004, order is not an appealable order. The appeal is dismissed for want of jurisdiction.
PER CURIAM
February 17, 2005
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The jury convicted appellant of the offense, and the trial court assessed punishment at confinement for 30 years. An appeal is pending in this court as Volo Al Nelson v. State, Cause No. 11-03-00235-CR.
[2]In a letter, appellant has directed this court to this evidence in the reporter=s record in Cause No. 11-03-00235-CR. Volumes 11 and 12 of the reporter=s record in Cause No. 11-03-00235-CR are now filed in this case.
[3]This court has received a copy of appellant=s pro se post-conviction writ of habeas corpus addressed to the Court of Criminal Appeals. We note that there is no indication in the record before this court that a final conviction has been entered in the present case.
[4]Constitutional speedy trial arguments can certainly be raised on direct appeal. Shaw v. State, 117 S.W.3d 883 (Tex.Cr.App.2003); Dragoo v. State, 96 S.W.3d 308 (Tex.Cr.App.2003).