Lester Jon Ruston v. State

• Court: Court of Appeals of Texas
• Decided: April 3, 2013
• Docket: 05-13-00293-CR
• Status: Published

Opinion

DISMISS; and Opinion Filed April 3, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-13-00293-CR No. 05-13-00294-CR No. 05-13-00295-CR

EX PARTE LESTER JON RUSTON

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause Nos. F04-15925-M, F04-21379-M, F04-24674-M

MEMORANDUM OPINION Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Lang-Miers Lester Jon Ruston was charged with three felony offenses. The cases did not proceed to

trial and were dismissed, on the State’s motion, on September 30, 2008. In 2012, appellant filed

a petition for writ of prohibition and an amended petition for writ of prohibition asking that the

trial court issue “an immediate peremptory writ” against the State of Texas “restraining the State

of Texas from any further acts of fraud, crime, obstruction of justice, or contempt of any court

orders.” The trial court concluded the petition was without merit and denied it. Appellant

appealed the trial court’s order.

On March 7, 2013, we sent appellant and the State a letter questioning our jurisdiction

over the appeal. Because it initially appeared appellant’s petition for writ of prohibition sought

dismissal of the criminal prosecutions, we questioned whether a petition for writ of prohibition is

the appropriate vehicle for seeking dismissal of a prosecution and whether we had jurisdiction over the appeal from the order denying the petition. Appellant did not file a jurisdictional brief.

Rather, he filed in this Court a new petition for writ of prohibition, which has been docketed as a

separate original proceeding.

Rather than seeking actual dismissal of the charges, it appears appellant sought a

preemptive determination that the State may not prosecute him on the charges. Nothing in the

record before the Court shows the State refiled the charges or is pursuing a prosecution of

appellant. Moreover, in a criminal case, only the Texas Court of Criminal Appeals has authority

to issue a writ of prohibition of the type appellant appears to be seeking. See TEX. CONST. art. V,

§ 5; TEX. CODE CRIM. P. Ann. arts. 4.03, 4.04 (West 2005 & Supp. 2012). See also Allen v.

Guarino, 635 S.W.2d 129, 129 (Tex. App.–Houston [1st Dist.] 1981, no pet.) (per curiam)

(courts of appeals do not have jurisdiction to issue writ of prohibition to prevent reindictment).

Because there is nothing before the Court over which we have jurisdiction, we dismiss

the appeals.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

Do Not Publish TEX. R. APP. P. 47

130293F.U05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE LESTER JON RUSTON On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-13-00293-CR Trial Court Cause No. F04-15925-M. Opinion delivered by Justice Lang-Miers, Justices Murphy and Fillmore participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 3rd day of April, 2013.

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE LESTER JON RUSTON On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-13-00294-CR Trial Court Cause No. F04-21379-M. Opinion delivered by Justice Lang-Miers, Justices Murphy and Fillmore participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE LESTER JON RUSTON On Appeal from the 194th Judicial District Court, Dallas County, Texas No. 05-13-00295-CR Trial Court Cause No. F04-24674-M. Opinion delivered by Justice Lang-Miers, Justices Murphy and Fillmore participating.

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

–5–