Kenneth Douglas Capehart v. State ( 2008 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00108-CR
______________________________
KENNETH DOUGLAS CAPEHART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 20,061-2008
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
Kenneth Douglas Capehart was convicted of theft of $20,000.00 or more, but less than
$100,000.00, enhanced. His sentence was imposed May 20, 2008. That same day, Capehart, acting
pro se, filed a notice of appeal with the Wood County District Clerk, specifying that he wanted to
appeal to the Twelfth Court of Appeals in Tyler.
On June 4, 2008, Capehart's appointed counsel, Troy Hornsby, filed a notice of appeal on
Capehart's behalf in which he stated his desire to appeal the trial court's judgment to this Court.
Wood County, the county from which this appeal originated, lies in two different appellate
districts. TEX . GOV 'T CODE ANN . § 22.201(g), (m) (Vernon Supp. 2007). Appeals from Wood
County may be taken either to the Sixth or the Twelfth Court of Appeals at the option of the
appellant. See Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n.4 (Tex. 1995). Jurisdiction lies in
the appellate court where the appeal is first perfected. Id. at 138.
Here, in the first-filed notice of appeal, Capehart designated the court to which he sought to
appeal, the Twelfth Court of Appeals in Tyler. Consequently, the Wood County District Clerk
forwarded the notice of appeal to that court of appeals. "The general common law rule in Texas is
that 'the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other
coordinate courts.'" Id.; Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Therefore, jurisdiction
lies solely in the Twelfth Court of Appeals. See Miles, 914 S.W.2d at 138; Curtis, 511 S.W.2d at
267.
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Because Capehart has already appealed to the Twelfth Court of Appeals, that court has
dominant jurisdiction over this appeal. Capehart cannot also invoke the jurisdiction of this Court
by filing a later notice of appeal directed to this Court.
This is a criminal case, with one appellant, and in this particular instance, the State has no
right of appeal. Therefore, we find that the proper remedy, rather than abating the case in accordance
with Miles, is to dismiss the appeal. Accordingly, we dismiss this appeal for want of jurisdiction.
See TEX . R. APP . P. 42.3(a).
Jack Carter
Justice
Date Submitted: June 25, 2008
Date Decided: June 26, 2008
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