Louanne Larson v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-16-00207-CR

LOUANNE LARSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court

Marion County, Texas

Trial Court No. 10846

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

Louanne Larson was convicted by a jury of capital murder and was sentenced October 8, 1993, to life imprisonment. Larson’s conviction was affirmed on direct appeal. Larson v. State, 890 S.W.2d 200 (Tex. App.—Texarkana 1994, pet. ref’d). Thereafter, in 2002, Larson filed a post-conviction motion for forensic deoxyribonucleic acid (DNA) testing under Article 64.03 of the Texas Code of Criminal Procedure. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.03(a), 2001 Tex. Gen. Laws 2, 3 (amended 2003, 2015) (current version at TEX. CODE CRIM. PROC. art. 64.03(a) (West Supp. 2016)). This Court affirmed the trial court’s denial of that motion. Larson v. State, No. 06-04-00056-CR, 2004 WL 2708039, at *4 (Tex. App.—Texarkana Nov. 30, 2004, pet. ref’d) (mem. op., not designated for publication). After Article 64.03 was amended in 2003, see Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 3, art. 64.03(a), 2003 Tex. Gen. Laws 16, 16 (amended 2015) (current version at TEX. CODE CRIM. PROC. art. 64.03(a)), Larson, in February 2015, filed a second post-conviction motion for forensic DNA testing. On September 28, 2015, the trial court denied that second motion as well, and Larson then filed a direct appeal to this Court under appellate cause number 06-15-00178-CR. See Larson v. State, 488 S.W.3d 413 (Tex. App.—Texarkana 2016, pet. ref’d).1 The record in appellate cause number

06-15-00178-CR was filed with this Court, and Larson filed a brief raising points of error related to the trial court’s denial of her second motion. On April 1, 2016, this Court issued its opinion affirming the trial court’s denial of Larson’s 2015 motion for forensic DNA testing. Id. The proceedings in appellate cause number 06-15-00178-CR constituted Larson’s direct appeal from the trial court’s September 28, 2015, order denying her second motion for DNA testing, and Larson is only entitled to one direct appeal from the denial of that motion. Larson has now filed a notice of appeal dated November 11, 2016. While it is not altogether clear what Larson sought to accomplish by the filing of her most recent notice of appeal, we interpreted that filing as Larson’s attempt to notice a second appeal from the September 2015 order denying her second motion for forensic DNA testing. Assuming Larson is attempting to file a second appeal from the trial court’s September 2015 order, we lack jurisdiction to hear such an appeal. See TEX. R. APP. P. 19.1, 19.3 (appellate court cannot vacate or modify judgment after plenary power has expired).

Moreover, on the record before us, it does not appear that the trial court has entered an appealable order or judgment since the September 28, 2015, order overruling Larson’s second motion for DNA testing. In the absence of an appealable judgment or order, we are without jurisdiction to hear an appeal.

By letter dated November 23, 2016, we notified Larson of this potential defect in our jurisdiction and afforded her the opportunity to respond. Larson has not filed a response.

We, therefore, conclude that we lack jurisdiction over this attempted appeal.

We dismiss this appeal for want of jurisdiction.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 20, 2017

Date Decided: January 25, 2017

Do Not Publish