                                  z 7o-n
                                    IN THE

                   COURT OF CRIMINAL APPEALS OF TEXAS


                                                                               RIGINA
                              NO.   PD-0870-17




                     DONALD ALLEN ITURNER, Appellant                  COURT OF CRIMINAL APPEALS
                                      Vs                                    OCT 20 2017

                      THE STATE OF TEXAS, Appellee,                    Deana Williamson, Cle rk



                    APPELLANT FILES    HIS    PETITION      FOR

    DISCRETIONARY REVIEW, TEXAS RULE OF APPELLATE PROCEDURE frfi*T> im
              -       -_      :                         :            ^QF^L AppEALs
                                                                           OCT 20 2W

                                                                     Deana VW/Kamson, Clerk
      ON APPEAL FROM THE DENIAL OF APPELLANT'S LEAVE TO AMEND
    TRIAL COURT'S CERTIFICATION, RIGHT TO APPEAL.                 FROM THE COURT
OF APPEALS,   ELEVENTH DISTRICT OF TEXAS, IN CAUSE NO. 11-17-00165-CR.




                  APPEAL FROM THE ,142nd DISTRICT COURT,
              MIDLAND COUNTY, TEXAS. CAUSE NO. CRA-16,002


                              Submitted By:
                   Donald Allen Turner, TDC # 1248114
                              3   Jester     Road

                         Richmond, Texas            77406
                                      IDENTITY OF PARTIES




Appellant,
Donald Allen Turner

Jester III Unit--TDC# 1248114
3 Jester Road

Richmond, Texas              77406

Attorney for Appellant,
Paul Williams

Williams &       Kirk

303 W. Wall, Street, Ste. #417. N.C.N.B. Bldg,
Midland, Texas              79701

Assistant District Attorneys,
Windel M.       Gibson

Ms.    Robin    Sams


Official Court Reporter,
Jerry Shorts
142nd Judicial District               Court
P.O.    Box    1922

Midland, Texas              79702

Judge Presiding,
Honorable       Pat    M.    Baskin

Honorable George D. Gilles
200 W. Wall, Suite # 301
Midland, Texas               79701
                                  TABLE OF CONTENTS



IDENTIFICATION OF         THE   PARTIES                                                i


TABLE OF CONTENTS                                                                     ii

INDEX OF AUTHORTIES                                                               iii

STATEMENT REGARDING         ORAL ARGUMENT                                             iv


STATEMENT OF THE CASE                                                                  v

GROUNDS    FOR REVIEW                                                             vii


ARGUMENT                                                                    ,Pgs. .1-8

PRAYER    FOR   RELIEF.                                      ...                .viii

APPENDIX                                                                              ix



QUESTIONS AND GROUNDS FOR REVIEW:

IS THE SUBSUMPTION THEORY OF Patterson v.                   State,   STILL VALID IN
LIGHT OF THIS COURT'S MORE RECENT CASE LAW?

WHENIScA COLLATERAL        ESTOPPEL CLAIM BASED           ON DOUBLE JEOPARDY   PRINCIPLES?

GROUNDS:


ONE:    TRIAL   COUNSEL WAS      INEFFECTIVE AT         PRETRIAL—WHERE HE    FAILED    TO
        QUASH INDICTMENT, BASED. ON DOUBLE-JEOPARDY GROUNDS.IN THE 142
        nd DISTRICT COURT. IN CASE NO. CRA-16,002. MIDLAND COUNTY,TEXAS.

TWO:    TRIAL COUNSELS FAILURE TO INVESTIGATE—WHERE THIS CASE FALLS
        UNDER "ELEMENTS" ANALYSIS, AND "UNITS" ANALYSIS.

THREE:    TRIAL COUNSEL'S FAILURE TO                INVESTIGATE—WHERE APPELLANT FALLS
          UNDER THE "MERGER DOCTRINE',' -: "THE SINGLE IMPULSE DOCTRINE','OR
          HERE IN TEXAS, "THE DOCTRINE OF SUBSUMED ACTS".

FOUR:    TRIAL COUNSEL'S FAILURE TO REQUIRE THE STATE TO ELECT,                   WHEN
         THE    STATE HANDED    DOWN A     TEN-COUNT      INDICTMENT.


FIVE:    TRIAL COUNSEL WAS INEFFECTIVE AT PRETRIAL,                  AND AT SENTENCING
         PHASE—WHERE HE         FAILED    TO   INVESTIGATE THE ELIGIBILITY OF PRIOR
         CONVICTION FOR ENHANCEMENT PURPOSES.                IN THE 243rd DISTRICT
         COURT, IN CASE NO. 20030D03096. EL PASO COUNTY, TEXAS.
         COLLATERAL ESTOPPEL-DOUBLE JEOPARDY CLAIM.




                                               ii
                             INDEX OF   AUTHORITIES
Aekins v. State, 447 S.W. 3d 270, 285 (Tex. Crim.                  App.   2014)Pg.l3
Appendi v. New Jersey, 580 U.S. at 466 (2000)                                Pag£, 8

Ashe v. Swenson, 397 U.S.       436, 443, 25 L.Ed. 2d 469, .9,0vS:.Cti 118,9
(1970)                                                                    v .Page7?78

Blockburger i w.. United States, 284 U.S.            299,   304,    52 S.Ct. 180,
76 L.Ed.    306 (1932)                                                ^.Page, 1-2.-3

Carmell v. Texas, 120 S.Ct. at 1620 (2000)                                    Page, 6

Ex parte Amador, 326 S.W. 3d 202, 206 n.5 (Tex. Crim. App.2014),1

Ex parte Watkins,      52 S.W. 3d 858, 2001 (Tex. Crim. App.) LEXIS
3821 (Forth Worth,       2001); Reporter, 73 S.W. 3d 264; 2002, (Tex.-
Crim. App. LEXIS 70*)                                                       Page,7-8

Garfias v. State, 424 S.W. 3d 54, 58. (Tex. Crim. App. 2014)..Pg>l-4

Goodbread, 967S.W. 2d at 860                                                  Page ,3

Harvey v. State, 367 S.W. 3d 513, 515 (Tex. App:. Texarkana, 2012,
pet. refvd)                                                                   Page ,2
Hawkins,    6 S.W.   3d at   557 n. 8                                         Page,3
Loving v. State, 401 S.W. 3d 642, 645-46 (Tex. Crim. App. 2013),4
Luna v. State, 493 S.W. 2d 854 (Tex. Crim. App. 1973)                         Page,3

People v. Henderson, 810 P. 2d 1058, 1060 (Colo. 1991)                        Page,3

Phillips, 193 S.W. 3d at 909                                                  Page,5

State v. Lee, 15 S.W. 3d 921, 929 (Tex. Crim. App. 2000)...Page,8

447 S.W. 3d at 270 (Tex. Crim.          App. 2014)                            Page,l

461 S.W. 3d at 144 (Tex. Crim. App. 2015)                                     Page, 3

                                   STATUTES


TRAP 2                       21.11(a)(1), (a)(2)               Art. 38.07
TRAP 66.3(a),(f)             22.021(a)(1)(B)
TRAP 68                      21.11 (a)(1)
TRAP 68.3(a)                 21.01(2)
TRAP 44.2(a),(b)
TRAP 25.2(f)
TRAP 37.1
TRAP 27.1 and 25.2(e), 10.5(a), (b)




                                        in
               STATEMENT REGARDING
                             f
                                   ORAL ARGUMENT




Appellant does not requests oral argument. Pursuant to Texas Rules

of Appellate Procedure,39.




                              IV
                          STATEMENT OF CASE



 Appellant was indicted in the 142nd District Court of Midland County,
Texas, on June 8th, 1989, in Case No. CRA-15,796. On a Ten (10) count
indictment, charging aggravated sexual assault of a child. Jury was
seated and sworn in--the Midland County Jury Verdict (Hung Jury).

 The State of Texas re-indicted defendant in the 142nd District. Court
of Midland County, Texas. On August 23rd, 1989, in Case No. CRA-16,002,
on another     Ten (10) count indictment, using some of the same names in
the first indictment after [he was aquitted] of the first indictment.
 The State; offered defendant Ten (10) years deferred adjudication,the
defendant accepted the Probation. On October 1993, defendant violated
after-serving Four (4) years—the State filed Motion to adjudicated,
the State's recommended Fifteen (15) years TDC. Appellant was released
under [Mandatory Supervision law] after serving Six (6) years.
 Appellant was then relocated after making parole to El Paso County,
Texas..Where he violated his parole. Appellant was charged in a Two
(2) count indictment on March 7th, 2003. Under TEX. PEN. CODE §§21.11
(a)(1), 22.021(a)(l)(ii), indecency with a child by contact aggravated
sexual assault, in the 243rd District Court of El Paso County, Texas.
In Cause No.   20030003096.Where the 243rd District Court handed down

a life sentence,on May 24th, 2004. (RR, Vol. 6 of 10).




                                  v,
                              STATEMENT OF QUESTIONS



ONE:   WHEN   IS   A   COLLATERAL   ESTOPPEL   CLAIM   BASED    ON   DOUBLE    JEOPARDY

       PRINCIPLES?



TWO:   IS THE SUBSUMPTION THEORY OF PATTERSON v.                STATE,   STILL VALID
       IN LIGHT OF THIS COURT'S MORE RECENT CASE LAW?



THREE:   DOES APPELLANT       FALL UNDER TEX.     CODE   OF    CRIM.   PROC.   ANN.   Art,

         38.07,        BEFORE ITS AMENDMENT ON SEPT. 1ST,1993?
         (defendant cannot be convicted on testimony alone), AS IN
         CARMELL v. TEXAS, 120 S.Ct. 1620 (2000).




                                         Vll
                          STATEMENT   OF   PROCEDURAL HISTORY



The Court of Appeals, Eleventh District of Texas, issued its order
on June 16th,       2017.In Case No.       11-17-00165-CR; Trial Court No.   CRA-
16,002. Styled: Donald Allen Turner v. The State of Texas.

We have this day received and filed a copy of Appellant's Pro Se
Notice of Appeal and the Trial Court Information from ihsthe above
cause. We note that the Notice of Appeal appears to be -untimely filed
in the    trial court.       The date due was December 30,      1993. Tex. R.APP.
26.2. The sentence was imposed on November 3, 1993; and the Notice
of Appeal was filed on June 15, 2017, 23 years and 197 days after                   .
the date that the sentence was imposed. Appellant is requested to
respond on or before July 3, 2017, showing grounds for continuing
this appeal, which may include proof of mailing. Absent a timely filed
Notice of Appeal,          this appeal may be dismissed for want of jurisdict
ion.   Tex.   R.   APP.    25.2.


On June 30th,       2017, this Court issued its order in the above case,
we have this day received and filed "Appellant's First Request to
Extend Time to File his Response—Pursuant to TRAP 10.5(a),(b) in
the above cause.We will advise you of the Court's action on this
motion.


On July 3rd, 2017,          the Court issued its order in the above case, we
have this day received and filed Applant's Pro Se response showing
grounds to continue this appeal in the above cause. Enclosed, Mr.
Turner will find his original exhibit documents.

On July 13th, 2017, the Court issued its order in the above cause.
The Court has this day DISMISSED the appeal in the above cause.
Copies of the Court's opinion and judgment are attached. Appellant
is advised that a Petition for Discretionary Review may be filed
with the Clerk, Court of Criminal Appeals, Austin, Texas. No copy
is required for the Eleventh Court of Appeals.

On July 17th, 2017, the Court issued its order in the above cause.
We have this day received and filed "Appellant Seeking Leave to Amend
Certification of his right to appeal. TRAP 25.2(f), 25.2(e), 27.1,
(Motion for Rehearing) in the above cause.We will advise you of the


                                           Vll
Court's   action on   this motion.


On July 27th, 207, the Court issued its order in the above cause.
The Court has this day DENIED "Appellant seeking leave to amend
certification of his right      to appeal. TRAP 25.2(f), 25.2(e),37.1'
(Motion for Rehearing) in the above cause.
The Court has also this day DENIED Appellant's pro se amended motion
for rehearing in the above cause.

If either party wishes to file a Petition for Discretionary Review,
please note:
1) Pursuant to Tex. R. APP. P. 68.3(a), the petition and all copies
of the petition must be filed with the Clerk of the Court of Crim
inal Appeals; and
2) Pursuant to Tex. R. APP. P. 68.4(j), a copy of this Court's opin
ion must be attached to each copy of the Petition for Discretionary
Review.

The ELEVENTH COURT OF APPEALS, issued its memorandum opinion in the
above Cause on July 13th, 2017. Attached in appendix.
*                                ******                                     *




The Court of Appeals for the Eighth District of Texas, issued its
opinion on April 26th,     2017, in Cause No. 08-17-00063-CR: From the
Trial Court Case No. 20030D03096; Styled: Donald Turner.
                                              v.


                                              The   State of Texas


The Honorable Court of Appeals today rendered judgment dismissing
the appeal, in accordance with the opinion of this Court. A copy
of the opinion and judgment has been mailed to the attorney          - of
record for each party.

On April;26th,- 2017*7 the Court .issued, its Judgment ih-thesabove- case,
styled and numbered cause to the trial court.

On April 26th, 2017,     the Court stated in its Judgment,   the Court has
considered this cause on the record and concludes the appeal should
be dismissed for lack of jurisdiction, in accordance with the opinion
of this Court. We therefore dismiss the appealr




                                     Vll
1 The Court of Appeals for the Eighth District;of Texas, issued its Memorandum
Opinion in Cause No. 08-17-00063-CR; El Paso County, Texas. April 26th, 2017.
See Memorandum Opinion in appendex.

On August 21st, 2017,     the Eighth District of Texas, issued its
MANDATE in the above numbered and styled cause. See Appendix.




                                      Vll
                             MEMORANDUM   OF    LAW




 In Texas, as in many, other jurisdictions, a defendant may not be

convicted for a completed sexual assault by penetration and also

for conduct (such as exposure or contact) that is demonstrably and

inextricably part of that single sexual assault. With these guiding

principles in mind, we turn to the double-jeopardy issue in this

case.   The Fifth Amendment provides,       "No person shall...be subject

for.the same offence to be twice put in jeopardy of life or limb[.]

 In North Carolina v. Pearce,       the Supreme Court stated that the

guarantee against double jeopardy consists of three separate Const

itutional protections; first, it protects against a second prosecu

tion for the same offense after acquittal; second, it protects against

a second prosecution for the same offense after conviction; and third,!

it protects against multiple punishments for the same offense.

 A multiple punishment double-jeopardy violation may arise either in

the context of lesser-included offense (when the same conduct is

punished under both a greater and a lesser-included statutory ofense)

or when the same criminal act is punished under two distinct statutory

provisions, but the legislature intended only one punishment. Block-

berger, 284 U.S. at 304; Ex parte Amador, 326 S.W. 3d 202, 206 n.5,

(Tex. Crim. App. 2010).

  A double-jeopardy violation occurs if one is convicted or punished

for   two or more offenses    that are    the   same both in law and in fact.

Id. Garfias v. State, 424 S.W.j3d 54, 58 (Tex.;Crim. App. 2014).See
Blockburger v. United States, 284 U.S. 299,-304, 52 S.Ct. 180, 76 L..
Ed. 306 (1932). 447 S.W. 3d 270 (Tex. Crim. App. 2014)."In a jury trial

MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 1
On appeal from the 142nd District Court, Midland County, Texas
On appeal from the 243rd District Court, El Paso County, Texas (sentencing phase).
the empaneling and swearing of the jury panel is the point at which

jeopardy attaches. In a bench trial,         jeopardy attaches when the def

endant pleads to the charging instrument and the court accepts                 the

plea". Harvey v. State, 367 S,W, 3d 513, 515 (Tex. App. Texarkana ,

2012, pet. ref'd).

 The question here is whether Ten-Counts of Appellant's convictions

for indecency with a child are the same, for double-jeopardy purposes,

as Ten of his convictions for aggravated sexual assault of a child.

In the double-jeopardy context, there are two different analysis for

determining the "sameness" of offenses: an;: "elements" analysis and a

"units" analysis. When the offenses at issue are codified in two

distint statutory provisions, the offenses must be considered the same

under both analysis for a double-jeopardy violation to occur.

 The offenses at issues in this case,        are the same under the "elements"

analysis,   they are also the same under the "units" analysis,              the of

fenses are considered the same for double-jeopardy violation.

                                  ELEMENTS


 The Court held that the offenses of indecency with a child and agg

ravated sexual assault of a      child are    the same under an elements

analysis, and a units analysis.Appellant's claim,therefore succeeds

on this aspect of the double-jeopardy analysis. Blockberger v. U.S.

284 U.S. 299, 52 S.Ct. 180, 176 L.Ed.         306 (1932).

                                    UNITS

 A "units" analysis consists of two parts: (1) what the allowable unit

of prosecution is, and (2) how many units have been shown. The first.:
part of the analysis is purely a question of statutory construction

and generally requires ascertaining the focus or gravamen of the of

fense. The second part requires an examination of the trial record,
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 2
which can include the evidence presented at trial.           (Outcry State--

ments,   "Same Day" April 16th, 1989).

 District Attorney first indictment, had included only "initial's"

in the Ten-counts based on different days,         (hung jury).

 The State's reindictment of the "Same Complainants", with their

real names—again different dates, even though the sworn "Outcry

Statements were based on the same date. April 16th, 1989.These dis

crete acts occured on the same day (April 16th, 1989), and are the

same, therefore, constitutingLonlylQne.'.allowable:unitsrof prosecution^.


1 "[T]he Blockerburger test saet up a presumption in a multiple-statute elements
inquiry...If offenses under different statutes all the 'same' elemtally, then;a
units analysis could be appropriate if, the pleading or the evidence indicates
                                  2
that there are different victims").



2 Blockerburger, 284 U.S. at 303; Hawkins, 6 S.W. 3d at 557 n. 8 (discussing Block-
burger and units of prosecution); Goodbread, 967 S.W. 2d at 860 ("For Double
Jeopardy purposes, the same offense means the identical criminal act, not the
same offense by name...When one cannot determine from the State's pleadings,
whether the offenses prosecuted are the same, the court must look to the proof
offered at trial".) (citing and quoting favorably from Luna v. State, 493 S.W. 2d
854 (Tex. Crim. App. 1973)); id. at 861 (we look to evidence at trial to deter
mine what instances of conforming to the indictment are jeopardy-barred); Aekins
v. State, 447 S.W. 3d 270, 285 (Tex. Crim. App. 2014); quoting 461 S.W. 3d at
144 (Tex. Crim. App. 2015).

 The first,   less famous, Blockberger test asks whether each criminal

act is a separate and distinct one, separated by time. If the offense

is a single continuous act, with a single impluse, in which several

different statutory provisions are necessarily violated along that

continuum, the offenses merge together.("The purpose of merger is to

avoid double punishment for a single wrongdoing".);. People v. Henderson,
MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 3
810 P. 2d 1058, 1060 (Colo. 1991)(analysis of whether convictions

should be merged must be based on double-jeopardy principles).See

Garfias, 424 S.W. 3d at 58. ("a "units" analysis is employed when

the offenses are alternative means of committing the same offense*);,

Loving v. State, 401 S.W. 3d 642, 645-46 (Tex. Crim. App. 2013).

 This is variously called "TheMerger Doctrine',' "The Single Impluse

Doctrine", or here in Texas,      "The Doctrine of Subsumed Acts".           If

more than one statutory offense is necessarily committed by that

single criminal act and impluse, then the offense merge and the

defendant may be punished only once. This "Single Impluse" aspect

of Blockburger is United States Supreme Court Law, not some pecu-

laiar doctrine thought up by Texas Judges. We are not permitted to

ignore or denigrate it. As a lower court, we are bound by Supreme

Court reasoning on Federal Constitutional issues, id.

447 S.W. 3d 270 (Tex. Crim. App. 2014). Though portions of : the

record of the prior trial may indicate that the State "focused" on

the first and last incidents of penetration and that, if forced to

elect, it probally would have picked these two incidents,             the record

nevertheless reflects that the jury was still authorized to convict

appellant based on the other incidents of penetration. It is imposs

ible to determine with any certainty which specific incidents of

penetration that the jury actually was uncertain (Mistrial) and could
not decide in the prior trial, it did not do so with the required

specificity. If, as in this case, a reviewing court finds itself in

the position of having to guess whether the State made an election,

then it should decide that there was no election.           Tex.   R. App.    Proc.

33.1(a)(1)(A)(prerequisite for presenting complaint for appellate

review requires party to make timely request with sufficient specificity

MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 4
to make trial court aware of the request). There were no election

in prior trial. The jury was (hung), whether the prior prosecutor

was vindictive, at the least, in losing this case, and that this

type of case that requires this Court to quite simply, grant the

PDR, because themanner and means are the same, time period is the

same (April 16th, 1989), even though the ADA had stated different

dates, the evidence (Outcry Statements state April 16th, 1989).
 In this case, appellant's counsel did not demand an election in

the prior trial, or the second trial, at the close of the State's

evidence, or at any other time.       Phillips, 193 S.W.     3d at 909.      See

Tex. R. App. Proc. 44.2(a), (b).

THE GRAND JURY'S    INDICTMENT:

 By a Ten-Count indictment, a Midland County grand jury ~".:eharged

appellant with indecency with a child by contact, indecency with a

by exposer, and aggravated sexual assault. TEX.           PEN. CODE 21.11(a)

(1), (a)(2) (Vernon 2003) & 22.021(a)(1)(B). 3xxhe':Bth\ 11989.

., The, State RE-.INDICTMENT HANDED DOWN 0N,August .23rd^l989:+_ on another
Ten-Count charging defendant with the "Same" counts.            "Same" names,

and "same" idates . Indictments attached^::See Appendix.

  Furthermore,    In 1989, appellant was convicted on 10 counts of com

mitting sexual offenses in the summer of 1989. Before September 1,

1993, Tex. Code Crim.     Proc. Ann. Art.     38.07,   specified that a victim's

testimony about a sexual offense could not support a conviction unless

corroborated by other evidence[or the victim informed another person
of the offense within six months of its occurrence, but that,                if a

victim was under 14 at the time of the offense,           the victim testimony

alone could support a conviction. An amendment to a Texas statute that

went into effect on September 1, 1993, authorized conviction of certain

MEMORANDUM OF LAW;, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 5
sexual offenses on the victim's testimony alone. Carmell v. Texas,

120 S.Ct.        1620 (2000).

 Finally, appellant was charged with indecency with a child, in a
                                            i:

two-count indictment, when he violated his parole in 2003, the

GRANT JURORS for the County of El Paso,                 State of Texas, in Case No.

20030D03096; In the 243rd District .Court. Tex. Pen. Code 21.11(a)(1)..;

COUNT ONE—Touching part of Gentials. Tex.                  Pen. Code 21.01(2).

COUNT TWO—Touching Breast. Tex.                  Pen. Code 221.01(2).

 Trial counsel was ineffective at sentencing phase, or here as the

record states, Judge's Conference. Held on May 24th, 2004; Stated in

(RR Vol. 6, Pg. 5). States

THE COURT:       Is   there a    recommendation on this?

THE STATE: Yes, Your Honor.             Its 10 years TDC.

Mr. UNDERWOOD: ADA, The last recommendation was 10 years to do.

THE COURT: What's your recommendation today?

Mr. UNDERWOOD:          ADA,   15 years.

THE COURT: ALL RIGHT. 15 years to do.

Mr. REY: Counsel for defendant, ask your client, on the record,
             whether      or not he's      interested in the recommendation of
             15 years to do.
Mr.   REY:   OKay.

Mr. Turner, the State of Texas has proposed a recommendation of
                  punishment. In exchange for your plea of guilty to
                  this charge,      its 15 years TDC. Would you willing to
                  accept that, or you declining that offer. (:RR Vol. 6;-Pg»J)lr.

THE DEFENDANT: One would have to be guilty of something. I'm not
                        guilty at all.

THE COURT: ALL RIGHT. Are there any motions we need to hear, Mr.
                 REY.

MR.   REY:   I   HAVE A    LIMINE MOTION.

MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 6
THE COURT:   HOW LONG IS THE LIMINE MOTION?

MR. REY:   IT'S JUST ABOUT EXTRANEOUSES, JUDGE, AND THE FACT HE'S ON
           PAROLE THAT   I   WANT LIMINED OUT.


 On May 25th, 2004, the 243rd District Court of El Paso County, Texas

found defendant guilty, and sentencing him to life.

 Appellant argues that the sentencing range on his two-count indict

ment carried a sentencing range of 2-20 years. The Cdurt found his

priors to be true—and enhancement his punishment.

 Other than the fact of a prior conviction,-any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt. With

that exception, it is unconstitutional for a legislature to remove

from the jury the assessment ofifacts that increase the prescribed

range of penalties to which a criminal defendant is exposed. It is

equally clear that such facts must be established by proof beyond a

reasonable doubt. Ex parte Watkins, 52 S.W. 3d 858, 2001 (Tex. Crim.

App. LEXIS 3821 (Fort Worth 2001). Reporter; 73 S.W. 3d 264*; 2002,

Tex. Crim. App. LEXIS 70**.

 The doctrine of collateral estoppel is embodied within the const

itutional bar against double jeopardy. But the two are not identical.

Double Jeopardy bars any retrial of a criminal offense. While col
lateral•estoppel bars any retrial of specific and discrete facts

that have been fully and fairly adjudicated. Ashe v. Swenson,397 U.S.

436, 443, 25 L.Ed. 2d 469, 90 S.Ct. 1189 (1970).

 The rights conferred on a criminal accused by the Double Jeopardy

Clause would be significantly undermined if appellate review of
double jeopardy claims were postponed until after conviction and

sentence. To be sure,        the Double Jeopardy Clause protects against

MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 7 .
being twice convicted for the same crime, and that aspect of the

right can be fully vindicated on appeal following final judgment.

However, the Double Jeopardy Cliause protects an individual against

more than being subjected to double punishments. It is a guarantee

against being twice put to trial for the same offense. Ashe,397 U.S,

at 443; State v. Lee, 15 S.W. 3d 921, 929 (Tex. Crim. App. 2000).

 A collateral estoppel claim is based on double jeopardy principles

when the State could, but declines to, join two or more offenses

which arise out of a single transaction and a final verdict or spec

ific factual finding favorable to the defendant in the first prose

cution would bar relitigation of the same fact in a second proceeds

ing.   Ex parte Watkins, 52 S.W. 3d 858 (Tex. App. Fort Worth 2001);

Apprendi v. New Jersey, 530 U.S. at 466 (2000).

                                               Rejipectfully Submitted,
                                                 CZ>*f? Ad&i
                                               :es/Donald Allen Turner




MEMORANDUM OF LAW, IN SUPPORT OF PETITION FOR DISCRETIONARY REVIEW-Page 8
Donald Allen Turner v. The State of Texas, In Cause No. PD-0870-17.
Under T.R.A.P. 68., On Appeal from the 142nd District Court, No. CRA-16,002.
Appeal from Eleventh District of Texa's., In Cause No. 11-17-00165-CR.
                         PRAYER FOR RELIEF



 W PURSUANT TO RULE 38.1(i) TEXAS RULES OF APPELLATE PROCEDURE

WHEREFORE,   PREMISES CONSIDERED, Appellant prays this Court find

that Appellant was not afforded effective assistance of counsel.

Upon said finding, Appellant respectfully requests the Court to

reverse the judgment and remand this case for a new trial.

 Appellant prays in the alternative,   this Court find that the   in

dictments were void, when the trial court enhanced defendant sent

ence to   life at punishment constituted reversible error. Upon

said finding, Appellant respectfully requests the Court to reverse

in part and remand for a new trial on punishment.


                                       Respectfully Submitted^

                                    --fenald'MlJenTurner *
                                       TDC# 1248114,
                                       Jester III Unit,
                                       3 Jester Road,
                                       Richmond, Texas    77406




                              vm
             APPENDIX




         COURT   OF   APPEALS

     EIGHTH DISTRICT     OF    TEXAS


          EL PASO,     TEXAS

         OPINIONS     ATTACHED




         COURT OF APPEALS

    ELEVENTH DISTRICT     OF    TEXAS

          EASTLAND,     TEXAS

OPINIONS ATTACHED,     WITH INDICTMENTS




                  IX
                                       COURT OF APPEALS
                                   EIGHTH DISTRICT OF TEXAS
                                        EL PASO, TEXAS




  DONALD TURNER,                                                  No. 08-17-00063-CR


                          Appellant,                                  Appeal from

  v.                                                              243rd District Court


  THE STATE OF TEXAS,                                           of El Paso County, Texas

                          Appellee.                               (TC # 20030D03096)




                                   MEMORANDUM OPINION


        Donald Turner is attempting to appeal his convictions of indecency with a child (Counts I

and II).   A jury found Appellant guilty and the trial court assessed his punishment at life

imprisonment. Finding that Appellant did not timely file his notice of appeal, we dismiss the

appeal for lack of jurisdiction.

        A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State,

918 S.W.2d 519, 522 (Tex.Crim.App. 1996). In a criminal case, a defendant's notice of appeal is

due within thirty days after the sentence is imposed in open court or the trial court enters an

appealable order. See Tex.R.App.P. 26.2(a)(1). The deadline is extended to ninety days after the

date the sentence is imposed in open court if the defendant timely files a motion for new trial. See

Tex.R.App.P. 26.2(a)(2). The judgment of conviction reflects that the trial court imposed sentence
in open court on May 27,2004. Appellant appealed to this Court in 2004, and we issued an opinion

and judgment affirming his convictions. Turner v. State, No. 08-04-00148-CR, 2006 WL 250482

(Tex.App.~El Paso February 2, 2006, pet. ref d). The Court of Criminal Appeals denied

Appellant's petition for discretionary review on July 26, 2006. Appellant has now filed a new

notice of appeal from the same judgment of conviction. We do not have jurisdiction to hear a

second appeal from the samejudgment. Further, we do not havejurisdictionto grant habeascorpus

relief. The Court of Criminal Appeals has exclusive authority to grant post-conviction relief if the

defendant is confined as a result of a final felony conviction., See Tex.CODE Crim.Proc.Ann. art.

11.07, § 3 (West 2015); Ater v. Eighth Court ofAppeals, 802 S.W.2d 241, 243 (Tex.Crim.App.

1991)("We are the only court with jurisdiction in final post-conviction felony proceedings.").

Accordingly, we dismiss the appeal for lack ofjurisdiction.


April 26, 2017
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




                                                2-
                                             Court of Appeals
CHIEF JUSTICE                                                                                      CLERK
 Ann Crawford McClure                     Eighth District of Texas                                 . Denise Pacheco

JUSTICES                                           El Paso County Courthouse
 Yvonne T. Rodriguez • •                        500 E. San Antonio Ave., Suite 1203
 Gina M. Palafox
                                                     El Paso, Texas 79901-2408
                                                (915) 546-2240 Fax (915) 546-2252
                                                  www.txcourts.gov/8thcoa.aspx



                                                      August 21, 2017

         'Donald Turner                                            Hon. Jaime E. Esparza
 /       #1248114
         Jester III Unit
                                                                   District Attorney
                                                                   El Paso County Courthouse
         3 Jester Road                                             500 E. San Antonio, Suite 201
         Richmond, TX 77406                                        El Paso, TX 79901
                                                                   * DELIVERED VIA E-MAIL *


         RE:         Court of Appeals Number:      08-17-00063-CR
                     Trial Court Case Number:      2003 0D03 096

         Style: Donald Turner
                    v.

                     The State of Texas


                    I have this date issued the Mandate in the above styled and numbered cause to the trial
         court.


                                                                    Respectfully yours,

                                                                    DENISE PACHECO, CLERK


                                                                                           &CA&&0
         cc:          Norma L. Favela Barceleau
                                                                                         FILE COPY




                                        MANDATE


TO THE 243RD DISTRICT COURT OF EL PASO COUNTY, GREETINGS:

Before our Court of Appeals for the Eighth District of Texas, on 4/26/17, the cause upon appeal
to revise or reverse your judgment between

DONALD TURNER,                                                        Appellant,

No. 08-17-00063-CR                    and

THE STATE OF TEXAS,                                                   Appellee,

was determined; and therein our said Court made its order in these words:



       The Court has considered this cause on the record and concludes the appeal should be

dismissed for lack of jurisdiction, in accordance with the opinion of this Court. We therefore

dismiss the appeal. We further order that this decision be certified below for observance.

       WHEREFORE, WE COMMAND YOU to observe the order of our said Court of
Appeals for the Eighth District of Texas, in this behalf, and in all things have it duly recognized,
obeyed and executed.

       WITNESS, the Clerk of the Court of Appeals, with the Seal thereof affixed, at the City of
El Paso, this August 21, 2017.

                                                   Denise Pacheco, Clerk




Trial Court No. 20030D03096
So?25M                                          J
                                                    _     INDICTMENT
                                                               PIDH"RK 891326/^3-04661_
                                                        STATE OF TEXAS
                                                              VS.
                                                        DONALD TURNER

OFFENSE:            COUNT I- INDECENCY WITH A CHILD
                    COUNT II- INDECENCY WITH A CHILD



                     IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS


          The J3tand. Jurors for the County of El Paso, State of Texas, duly organized as such, at
the      lANuAK*                     Term, A.D., 2003 of the                UQTU                 Judicial District Court for
said County, upon their oaths in said Court, present that on or about the 7th day of March,
2003 and anterior to the presentment of this indictment, in the County of El Paso and State of
Texas, DONALD TURNER, hereinafter referred to as Defendant,

did then and there with intent to arouse and gratify the sexual desire of the said defendant,
intentionally and knowingly engage in sexual contact with JESSICA SNYDER, hereinafter
referred to as Complainant, a child who was then and there younger than 17 years of age and
not the spouse of said defendant by then and there touching any part of the genitals of said
Complainant,




          AGAINST THE PEACE AND DIGNITY OF THE STATE.




FILED THE              juh ? 5 w                                                                                            DEPUTY


THE STATE OF TEXAS
COUNTY OF EL PASO

          I certify that the foregoing is a true and correct copy of the original Indictment on file In my office. Given under my hand
and seal of the court at my office in El Paso, Texas on the                        II \}j 0 ^ 7003
                                                              GILBERT SANCHEZ, DistrictClerk, El Paso County,


BAIL AMOUNT:    M,wO                                          by                                                Di

                                                                            .c^fi
STATE OF TEXAS VS. DONALD TURNER
INDICTMENT - INDECENCY WITH A CHILD
COUNT II - 03-107203


        And the Grand Jurors of aforesaid, upon their oaths aforesaid, do further say, charge
and present in and to said Court at said term that on or about the 7th day of March, 2003 and
anterior to the presentment of this indictment, in the County of El Paso and State of Texas,
DONALD TURNER, hereinafter referred to as Defendant,

did then and there with intent to arouse and gratify the sexual desire of the said defendant,
intentionally and knowingly engage in sexual contact with JESSICA SNYDER, hereinafter
referred to as Complainant, a child who was then and there younger than 17 years of age and
not the spouse of said defendant by then and there touching the breast of said
Complainant,




          AGAINST THE PEACE AND DIGNITY OF THE STATE.




FILED THE                                                                                                                   DEPUTY

THE STATE OF TEXAS
COUNTY OF EL PASO

          I certify that the foregoing is a true and correct copy of the original Indictment on file in my office. Given under my hand
and seal of the court at my office in El Paso, Texas on the                                           _,                     .
                                                                               JUN 9 5 ZUUJ
                                                             GILBERT SANCHEZ, District Clerk, El Paso County, Texas


                                                             by.                                               _Deputy
BAIL AMOUNT: $ J
                              1 lTH COURT OF APPEALS
                                 EASTLAND, TEXAS
                                     JUDGMENT



Donald Allen Turner,                          * From the 142nd District Court
                                               of Midland County,
                                               Trial Court No. CRA-16,002.

Vs. No. 11-17-00165-CR                        * July 13,2017

The State of Texas,                           * Per Curiam Memorandum Opinion
                                               (Panel consists of: Wright, C.J.,
                                               Willson, J., and Bailey, J.)


      This court has inspected the record in this cause and concludes that the
appeal should be dismissed for want ofjurisdiction. Therefore, in accordance
with this court's opinion, the appeal is dismissed.
JIM R. WRIGHT
 CHIEF JUSTICE
                                                 Court of Appeals                                      SHERRY WILLIAMSON
                                                                                                                 CLERK


                                                Eleventh District of Texas                                TELE: 254/629-2638
MIKE WILLSON
 JUSTICE                                           100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191
                                                            P.O. BOX 271                             sherry.williamson@txcourts.gov
JOHN M. BAILEY
 JUSTICE                                               EASTLAND, TEXAS 76448                            www.rxcourts.gov/11 thcoa

                                                          June 16,2017

             Donald Allen Turner                                   Laura Nodolf, District Attorney
             TDCJ #01248114                                        Eric Kalenak, Assistant
             Jester III Unit                                       District Attorney's Office
                 3 Jester Road                                     500 North Loraine Street, Suite 200
                 Richmond, TX 77406                                Midland, TX 79701
                                                                   * DELIVERED VIA E-MAIL *


             RE:        Appellate Case Number: 11-17-00165-CR
                        Trial Court Case Number:     CRA-16,002
                 Style: Donald Allen Turner v. The State of Texas

                        We have this day received and filed a copy of Appellant's Pro Se Notice of Appeal and
             the Trial Court Information Form in the above cause. This case bears the above docket number
             that should be used on all future correspondence and filings.

                        We note that the Notice of Appeal appears to be untimely filed in the trial court. The due
                 date was December 30, 1993. Tex. R. App. P. 26.2.

                        The sentence was imposed on November 3, 1993; and the Notice of Appeal was filed on
                 June 15, 2017, 23 years and 197 days after the date that the sentence was imposed.

                        Appellant is requested to respond on or before July 3, 2017, showing grounds for
                 continuing this appeal, which may include proof of mailing.

                        Absent a timely filed Notice of Appeal, this appeal may be dismissed for want of
             jurisdiction. Tex. R. APP. P. 25.2.

                                                                               Respectfully yours,




                                                                               Sherry Williamson, Clerk

                 cc:   George D. Gilles, Judge (DELIVERED VIA E-MAIL)
                       District Clerk - Midland County (DELIVERED VIA E-MAIL)
                       Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
 CHIEF JUSTICE
                                                 Court of Appeals                                    SHERRY WILLIAMSON
                                                                                                               CLERK


                                              Eleventh District of Texas                               TELE: 254/629-2638
MIKEWILLSON
 JUSTICE                                         100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191

                                                          P. O. BOX 271                         sherry.williamson@txcourts.gov
JOHN M. BAILEY                                                                                       www.rxcourts.gov/11 thcoa
 JUSTICE                                             EASTLAND, TEXAS 76448

                                                        June 30, 2017

           Eric Kalenak, Assistant                            Laura Nodolf, District Attorney
           District Attorney's Office                         District Attorney's Office
           500 North Loraine Street, Suite 200                500 North Loraine Street, Suite 200
           Midland, TX 79701                                  Midland, TX 79701
           * DELIVERED VIA E-MAIL *                           * DELIVERED VIA E-MAIL *


           Donald Allen Turner
           TDCJ #01248114
           Jester III Unit
           3 Jester Road
           Richmond, TX 77406

           RE:     Appellate Case Number: 11-17-00165-CR
                   Trial Court Case Number:      CRA-16,002
           Style: Donald Allen Turner
                   v. The State of Texas


                    We have this day received and filed "Appellant's First Request to Extend Time to File His
            Response-Pursuant to TRAP 10.5(a) and (b)" in the above cause.

                    We will advise you of the Court's action on this motion.

                                                                          Respectfully yours,




                                                                          Sherry Williamson, Clerk

           cc:    George D. Gilles, Judge (DELIVERED VIA E-MAIL)
                  District Clerk - Midland County (DELIVERED VIA E-MAIL)
                  Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
 CHIEF JUSTICE
                                                  Court of Appeals                                      SHERRY WILLIAMSON
                                                                                                                  CLERK


                                                 Eleventh District of Texas                                TELE: 254/629-2638
MIKEWILLSON
 JUSTICE                                            100 WEST MAIN STREET, SUITE 300                         FAX: 254/629-2191

                                                             P.O. BOX 271                             sherry.williamson@txcourts.gov
JOHN M. BAILEY                                                                                           www.txcourts.gov/11 thcoa
 JUSTICE                                                EASTLAND, TEXAS 76448

                                                            July 3,2017

                 Eric Kalenak, Assistant                            Laura Nodolf, District Attorney
                 District Attorney's Office                         District Attorney's Office
                 500 North Loraine Street, Suite 200                500 North Loraine Street, Suite 200
                 Midland, TX 79701                                  Midland, TX 79701
                 * DELIVERED VIA E-MAIL *                            * DELIVERED VIA E-MAIL *


                 Donald Allen Turner
                 TDCJ #01248114
                 Jester III Unit
                 3 Jester Road
                 Richmond, TX 77406

                 RE:     Appellate Case Number: 11-17-00165-CR
                         Trial Court Case Number:      CRA-16,002
                 Style: Donald Allen Turnerv. The State of Texas

                         We have this day received and filed Appellant's Pro Se response showing grounds to
                 continue this appeal in the above cause.

                         Enclosed, Mr. Turner will find his original exhibit documents.

                                                                                Respectfully yours,


                                                                                 O^CutAA*«-F

                                                                                 Sherry Williamson, Clerk

                 cc:    George D. Gilles, Judge (DELIVERED VIA E-MAIL)
                        District Clerk - Midland County (DELIVERED VIA E-MAIL)
                        Melissa Crooks, Court Reporter (DELIVERED VIA E-MAIL)
JIM R.WRIGHT
CHIEFJUSTICE
                                                Court of Appeals                                       SHERRY WILLIAMSON
                                                                                                                 CLERK


                                               Eleventh District of Texas                                 TELE: 254/629-2638
MIKEWILLSON
JUSTICE                                           100 WEST MAIN STREET, SUITE 300                         FAX: 254/629-2191

                                                           P.O. BOX 271                              sherry.williamson@txcourts.gov
JOHN M. BAILEY                                                                                          www.txcourts.gov/llthcoa
 JUSTICE                                              EASTLAND, TEXAS 76448

                                                         July 13, 2017

               Eric Kalenak, Assistant                            Laura Nodolf, District Attorney
               District Attorney's Office                         District Attorney's Office
               500 North Loraine Street, Suite 200                500 North Loraine Street, Suite 200
               Midland, TX 79701                                  Midland, TX 79701
               * DELIVERED VIA E-MAIL *                            * DELIVERED VIA E-MAIL *


               Donald Allen Turner
               TDCJ #01248114
               Jester III Unit
               3 Jester Road
               Richmond, TX 77406

               RE:     Appellate Case Number: 11-17-00165-CR
                       Trial Court Case Number:      CRA-16,002
               Style: Donald Allen Turner v. The State of Texas

                       The Courthas this day DISMISSED the appeal in the above cause.

                       Copies of the Court's opinion and judgment are attached.
                       Appellant is advised that a Petition for Discretionary Review may be filed with the Clerk,
               Court of Criminal Appeals. Austin. Texas. No copy is required for the Eleventh Court of
               Appeals.

                                                                               Respectfully yours,




                                                                               Sherry Williamson, Clerk

               cc:    George D. Gilles, Judge (DELIVERED VIA E-MAIL)
                      District Clerk - Midland County (DELIVERED VIA E-MAIL)
                      Dean Rucker, Administrative Judge (DELIVERED VIA E-MAIL)
JIM R. WRIGHT
 CHIEF JUSTICE
                                                  Court of Appeals                                      SHERRY WILLIAMSON
                                                                                                                  CLERK



                                                 Eleventh District of Texas                                TELE: 254/629-2638
MIKE WILLSON
 JUSTICE                                            100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191
                                                             P.O. BOX 271                             sherry.williamson@txcourts.gov
JOHN M. BAILEY                                                                                           www.txcourts.gov/11 thcoa
 JUSTICE                                                EASTLAND, TEXAS 76448

                                                           July 17, 2017

             Eric Kalenak, Assistant                                Laura Nodolf, District Attorney
                 District Attorney's Office                         District Attorney's Office
                 500 North Loraine Street, Suite 200                500 North Loraine Street, Suite 200
                 Midland, TX 79701                                  Midland, TX 79701
                 * DELIVERED VIA E-MAIL *                            * DELIVERED VIA E-MAIL *

                 Donald Allen Turner
                 TDCJ #01248114
                 Jester III Unit
                 3 Jester Road
                 Richmond, TX 77406

                 RE:     Appellate Case Number: 11-17-00165-CR
                         Trial Court Case Number:      CRA-16,002
                 Style: Donald Allen Turner v. The State of Texas

                        We have this day received and filed "Appellant Seeking Leave to Amend Certification of
                 His Right to Appeal. TRAP 25.2 (f), 25.2 (e), 37.1" (Motion for Rehearing) in the above cause.
                         We will advise you of the Court's action on this motion.

                                                                                Respectfully yours,




                                                                                 Sherry Williamson, Clerk
JIM R.WRIGHT
CHIEF JUSTICE
                                                 Court of Appeals                                      SHERRY WILLIAMSON
                                                                                                                 CLERK


                                                Eleventh District of Texas                                TELE: 254/629-2638
MIKEWILLSON
JUSTICE                                            100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191

                                                            P.O. BOX 271                             sherry.williamson@rxcourts.gov
JOHN M. BAILEY
JUSTICE                                                EASTLAND, TEXAS 76448                           www.txcourts.gov/1 lthcoa

                                                          July 27, 2017

            Eric Kalenak, Assistant                                Laura Nodolf, District Attorney
            District Attorney's Office                             District Attorney's Office
            500 North Loraine Street, Suite 200                    500 North Loraine Street, Suite 200
            Midland, TX 79701                                      Midland, TX 79701
                * DELIVERED VIA E-MAIL *                           * DELIVERED VIA E-MAIL *


            Donald Allen Turner
            TDCJ #01248114
            Jester III Unit
            3 Jester Road
            Richmond, TX 77406

            RE:        Appellate Case Number: 11-17-00165-CR
                       Trial Court Case Number:       CRA-16,002
                Style: Donald Allen Turner v. The State of Texas

                    The Court has this day DENIED "Appellant seeking leave to amend certification of his
            right to appeal. TRAP 25.2 (f), 25.2 (e), 37.1" (Motion for Rehearing) in the above cause.

                       The Court has also this day DENIED Appellant's pro se amended motion for rehearing
                in the above cause.


                       If either party wishes to file a Petition for Discretionary Review, please note:

                       1) Pursuant to Tex. R. App. P. 68.3(a), the petition and all copies of the petition must be
                           filed with the Clerk of the Court of Criminal Appeals; and

                       2) Pursuant to Tex. R. App. P. 68.4(j), a copy of this Court's opinion must be attached to
                           each copy of the Petition for Discretionary Review.


                                                                               Respectfully yours,




                                                                               Sherry Williamson, Clerk
y




    Opinion filed July 13, 2017




                                          In The



            Clebentf) Court of gppeate
                                  No. 11-17-00165-CR



                       DONALD ALLEN TURNER, Appellant
                                             V.

                          THE STATE OF TEXAS, Appellee


                         On Appeal from the 142nd District Court
                                  Midland County, Texas
                             Trial Court Cause No. CRA-16,002



                           MEMORANDUM               OPINION

           Donald Allen Turner, Appellant, has filed an untimely notice of appeal in this
    cause. Appellant attempts to appeal from the adjudication of his guilt with respect
    to three counts of indecency with a child by contact. We dismiss the appeal.
           The documents on file in this case indicate that Appellant's sentence for each
    count was imposed on November 3, 1993, and that his notice of appeal was filed in
    the district clerk's office on June 15, 2017. Pursuant to Tex. R. App. P. 26.2(a), a
>. . \



         notice of appeal is due to be filed either (1) within thirty days after the date that
         sentence is imposed in open court or (2) if the defendant timely files a motion for
         new trial, within ninety days after the date that sentence is imposed in open court.
         A notice of appeal must be in writing and filed with the clerk of the trial court.
         TEX. R. App. P. 25.2(c)(1).        The documents on file in this court reflect that
         Appellant's notice of appeal was filed with the clerk of the trial court more than
         twenty-three years after Appellant's sentences were imposed. The notice of appeal
         was, therefore, untimely. Absent a timely filed notice of appeal or the granting of a
         timely motion for extension of time, we do not have jurisdiction to entertain this
         appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State,
         918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108,
         110 (Tex. Crim. App. 1993).
               When the appeal was filed in this court, we notified Appellant by letter that
         the notice of appeal appeared to be untimely and that the appeal may be dismissed
         for want ofjurisdiction. We requested that Appellant respond to our letter and show
         grounds to continue. Appellant filed a response in which he asserts that he was not
         afforded effective assistance of counsel during the punishment phase of the
         adjudication proceeding. We have considered Appellant's response; however, we
         are without authority to proceed with this appeal. See Slaton, 981 S.W.2d at 210.
               Accordingly, we dismiss this appeal for want of jurisdiction.


                                                              PER CURIAM




         July 13,2017
         Do not publish. See TEX. R. APP. P.47.2(b).
         Panel consists of: Wright, C.J.,
         Willson, J., and Bailey, J.
                                                      Court of Appeals
CHIEF JUSTICE                               t-i   „         tv               „            m                CLERK
 Ann Crawford McClure                       ElGHTH DISTRICT OF TEXAS                                       Den" Pacheco
JUSTICES                                                  El Paso County Courthouse
 Yvonne T. Rodriguez         .                         500 E. SAN ANTONIO AVE., SUITE 1203
 Gina M. Palafox                                           El pAS0> Texas 7990,.240g
                                                       (915) 546-2240    Fax (915) 546-2252
                                                        www.txcourts.g0v/8.thcoa.aspx


                                                              April 26, 2017

         Donald Turner                                                     Hon. Jaime E. Esparza
         #1248114                                                          District Attorney
         Jester III Unit                                                   El Paso County Courthouse
         3 Jester Road                                                     500 E. San Antonio, Suite'201
         Richmond, TX 77406                                                El Paso, TX 79901
                                                                           * DELIVERED VIA E-MAIL *


         RE:           Court of Appeals Number:          08-17-00063-CR
                       Trial Court Case Number:         .20030D03096

         Style: Donald Turner
                       v.

                       The State of Texas                          . ,              ".        .

                The Honorable Court of Appeals today rendered judgment dismissing the appeal, in
        accordance with the opinion of this Court. A copy of the opinion and judgment has been mailed
        to the attorney of record for each party.

                                                                             Respectfully yours,

                                                                             DENISE PACHECO, CLERK




        cc:             Honorable Luis Aguilar
                        Norma L. Favela Barceleau
                                      COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS




  DONALD TURNER,                                                 No. 08-17-00063-CR


                         Appellant,                                  Appeal from

  v.                                                             243rd District Court


  THE STATE OF TEXAS,                                          of El Paso County, Texas

                         Appellee.                               (TC # 20030D03096)




                                       JUDGMENT


       The Court has considered this cause on the record and concludes the appeal should be

dismissed for lack of jurisdiction, in accordance with the opinion of this Court. We therefore

dismiss the appeal. We further order that this decision be certified below for observance.

       IT IS SO ORDERED THIS 26TH DAY OF APRIL, 2017.




                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.
State of Texas                             Cause #      CRA-15.796                      In the          1 42nd           District

                                                                                           Court of Midland County, Texas

                                                                F
DONALD 'ALLEN TURNER


                                                               yinits c«TO/E33t/&d: t/0.O&£>                           &o



                                                                            oeputy
Offense:   AGGRAVATED SEXUAL ASSAULT



                                                     INDICTMENT

IN THE NAME AND, BY AUTHORITY OF THE STATE OF TEXAS:

    THE GRAND JURY, for the County of Midland, State of Texas, duly selected, empaneled,; sworn, charged,
and organized as such by the District Court fob said County, upon their oaths present in and to. said court that

                                                DONALD ALLEN TURNFR

hereinafter styled Defendant, on or about the         16th     day of          Apri 1                          A.D., 19 ftQ

and before the presentment of this indictment, in the county and State aforesaid,
did  then  and there intentionally and knowingly cause an   object,  to-wit:
HIS FINGER, to penetrate the female sex organ of C.D. and ,the said C.D. was
then  and there a child younger than 14 years of age and not the spouse   of
the said DONALD.ALLEN TURNER,

                                                     COUNT     II


               AND   THE GRAND JURORS AFORESAID,                     upon    tneir      oatns           aforesaid,          do
further present            in and to said court that on or about the,16th'day of April
A.D.,      1989,      -i-n «s'a id. -coun ty -and '-s-t^at-e ,- -~a;nd<-ah-t-erior io .the-presentment of
this indictment,  DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause-an object,  to-wit: HIS FINGER, to penetrate the female sex
organ of P.D.  and the said P.D. was then and there a child younger than 14
years of age and not the spouse of the said DONALD ALLEN TURNER,

                                                     COUNT     III


        AND  THE  GRAND JURORS AFORESAID,   upon their oaths    aforesaid,  do
further present in and to said court that on or about the 11th day of March
A.D.,  1989,  in said county and state,   and .anterior' to the presentment of
this indictment,  DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause an object, to-wit:    HIS FINGER, to penetrate, the female sex
organ  of  KELLY MCCARTY and the sa'.id KELLY MCCARTY was then   and  ther.e a
child  younger  than 14 years of age and not the spouse of the said     DONALD
ALLEN TURNER,

                                                     COUNT     IV                                 '        •


               AND   THE GRAND JURORS AFORESAID,                     upon their         oaths           aforesaid,            do
f u r th s r     present      in     and   to s?id c o ur t that         on o *~ about           the*     3 0th    day        of
September   A.D.,  1988,  in  said  county and state,   and anterior   to   the
presentment   of this indictment,  DONALD ALLEN TURNER,   did then and    there
with the intent to arouse and gratify the sexual desire of the said     DONALD
ALLEN TURNER,   engage in sexual contact with B.D.,   a child younger than 17
years          of age and not the spouse qf the said DONALD ALLEN TURNER,                                         by     then
and there touching                 a part of the genitals of the said B.D,
                                                                                    CRA-15,796

                                                                o

                                       COUNT   V


          AND    THE   GRAND JURORS AFORESAID,        upon their oaths      aforesaid,      do
further present in and to said court that on or about the 13th day of                     July
A.D.,    1988,    in said county and state,         and anterior to the presentment of
this indictment,       DONALD ALLEN TURNER, did then and there with the intent              to
arouse and gratify   the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with M.G.,  a child younger than 17 years of age
and  not the  spouse of the said DONALD ALLEN TURNER,  by then  and  there
touching a part of       the genitals of   the said M.G.,

                                       COUNT   VI


         AND THE GRAND JURORS AFORESAID,   upon their  oaths  aforesaid,  do
further   present in and to said court that on or about the 16th day of July
A.D.,   1988,  in said county and state,  and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse  and  gratify  the sexual desire of the said  DONALD  ALLEN  TURNER,
engage in sexual contact with COLLEN MCCARTY, a child younger than 17 years
of age and not the spouse of the said DONALD ALLEN TURNER,    by.                 then     and
there touching a part of the genitals of the said COLLEN MCCARTY,

                                       COUNT   VII


         AND   THE GRAND JURORS AFORESAID,   upon their   oaths  aforesaid,    do
further   present   in  and to said court that on or about the    15th   day   of
August   A.D.,   1988,  in  said   county  and  state,  and   anterior   to   the
presentment    of this indictment,   DONALD ALLEN TURNER,   did then and    there
with   the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER,    engage in sexual contact with SUSAN CHAMBER, a child younger
than 17 years of age and not the spouse of the said DONALD ALLEN TURNER, by
then and there touching a part of the genitals of the said SUSAN CHAMBER,

                                       COUNT   VIII


          AND  THE  GRAND JURORS AFORESAID,   upon their oaths   aforesaid,   do
further    present in and to said court that on or about the 27th day of     May
A.D.,   1987,   in said county and state,   and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse    and  gratify  the sexual desire of the said   DONALD   ALLEN   TURNER,
engage    in sexual contact with S.J.,  a child younger than 17 years of     age
and   not   the spouse of the said DONALD ALLEN TURNER,   by   then  and   there
touching a part of       the genitals of   the said S.J.,

                                       COUNT    IX


          AND    THE   .GRAND JURORS AFORESAID,       upon   their oaths     aforesaid,     do
further present in and to said court that on or about the 16th day of April
A.D.,  1989,  in said county and state,  and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse  and  gratify  the sexual desire of the said  DONALD ALLEN   TURNER,
engage    in sexual contact with D.G.,         a child younger than 17 years of            age
and  not  the spouse of the said DONALD ALLEN TURNER,               by     then   and    there
touching a part of the genitals of the said D.G.,

                                       COUNT    X


          AND    THE    GRAND JURORS AFORESAID,       upon   their oaths     aforesaid,     do
further present in and to said court that on or about the 16th day of April
A.D.,  1989,  in said county and state,  and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER expose
a part of the genitals of the said DONALD ALLEN TURNER to D.G.,    a child
younger    than 17 years of age ancl not the spouse of the said DONALD ALLEN
TURNER,    the said DONALD ALLEN TURNER then and there knowing that the said
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                                                                                                                                                                                                                                                 I, ROSS BUSH, District Cferfc,'"                                                              ,/            .- tt VS' '
                                                                                                                                                                                              . < '                                              Midland County, Texas,do;jiereby certify that '«,;.
                                                                                                                                                                                                              1                            f this is a true and correct copy as same appears                                                                                   t - „
                                                                                                                                                                                                    ^                             '% of record in1,my office. Witness myjjand and ,,' ,> „ "*
                                                              .uJStF^           if"* 6**
State "of Texas                             Cause # CRA-16;o62(2)               jWj |l t)\n the            142nd             District
                                                                      u L •-j   •••••"-    --
                                                                                                    Court of Midland County, Texas
       v-                                                      89 AUG 23 PH U'- 37
                                                             ViVlAN WOOD. DISTRICT CLERK
DONALD ALLEN TURNER                                            MiDLf -«>»»tv/»FJ£AS •/
                                                                          DEPUTY
                                                                                                    nJt/O^Q        0   0 - c-o


Offense:     AGGRAVATED SEXUAL ASSAULT


                                                          RE'-INDICTMENT
                                                     INDICTMENT

IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

    THE GRAND JURY, for the County of Midland, State of Texas, duly, selected, empaneled, sworn, charged,
and organized as such by the District Court for said County, upon their oaths present in and to said court that

                                            DONALD ALLEN TURNER

hereinafter styled Defendant, on or about the         16th     day of                     Apr i 1                A.D., 19 89

and before the presentment of this indictment, in the county and State aforesaid,

did         then   and there intentionally and knowingly cause an- object,                                             ,to-wit:
HIS FINGER, to penetrate the female sex organ of SYBIL HUBBARD and the said
SYBIL         HUBBARD was then and there;a child younger than 14 years of age                                                    and
 not the spouse of the said DONALD ALLEN TURNER,
                                                                                                                       i



                                                      COUNT     II


               AND THE GRAND JURORS AFORESAID,                        upon their                oaths       afore.sa^d,          do
 further present in and to said court that on or about thes 16th day,of April
A.D.,         I989,     in said county and state,                    and anterior to'the presentment of
 this indictment,             DONALD ALLEN TURNER, did then and there intentionally and
 knowingly cause an object,  to-wit: HIS FINGER, to penetrafe the female sex
 organ ,of SHARLA REDDING and the said SHARLA REDDING was then-and  there 'a
 child        younger      than 14 years of age and not the spouse of the said                                             DONALD
ALLEN TURNER,

                                                      COUNT     III
                                                      >


        AND THE GRAND JURORS AFORESAID,    up.on, their oaths aforesaid, .do
further present in and to said court that on or about the 11th day of March'
A.D.,         1989,     in said county and state,                    and anterior to the presentment of
 this indictment,             DONALD ALLEN TURNER, did then and there intentionally and
knowingly cause an object, to-wit:                          HIS FINGER, to penetrate the female sex
organ        of  KELLY MCCARTY and the said KELLY MCCARTY was then  and  there a
child        younger  than 14 years of age and not the,spouse of the said DONALD
ALLEN TURNER,

                                                      COUNT     IV


        M\iD the GRAND 'UROPS AFQRFSatd, i'pon their oai'is aforesaid, do
further present   in and to said court that on or about the 30th day of
September A.D.,   1988,  in said county and state,   and anterior  to the
presentment  of this indictment,    DONALD ALLEN TURNER,  did then and! there
with the intent' to arouse and 'gratify the sexual desire of the said ' DONALD
ALLEN TURNER, engage in sexual contact with JENNIFER MASON, a 'child younger
than 17 years of age and not the spouse of the said DONALD^ALLEN TURNER, by
then and there touching a part of the genitals of the said JENNIFER MASON,
                                               COUNT     V


          AND      THE GRAND JURORS AFORESAID,                 upon their   oaths      aforesaid,       do
further        present     in     and    to said court that on or about the              1st    day     of
October A.D.,   1987,  in said   county and  state,  and   anterior   to   the
presentment  of this indictment,  DONALD ALLEN TURNER,   did then and    there
with  the intent to arouse and gratify the sexual desire of the said DONALD
ALLEN TURNER,  engage in sexual contact with WHITNEY GRAY, a child younger
than 17 years of age and not the spouse of the said DONALD ALLEN TURNER, by
then and there touching a part of the genitals of the said WHITNEY GRAY,

                                               COUNT     VI


         AND THE GRAND JURORS AFORESAID,   upon their  oaths  aforesaid,  do
further   present in and to said court that on or about the 16th day of July
A.D.,   1988,  in said county and state,  and anterior to the presentment Of
this    indictment,      DONALD ALLEN TURNER,           did    then and there with the         intent   to
arouse and   gratify  the sexual desire of the said DONALD ALLEN TURNER,
engage in sexual contact with COLLEN MCCARTY, a child younger than 17 years
of age   and not the spouse of the said DONALD ALLEN TURNER,  by  then  and
there touching a part of the genitals of the said COLLEN MCCARTY,

                                               COUNT     VII


        AND THE GRAND JURORS AFORESAID,   upon their  oaths  aforesaid,  do
further present  in and to said court that on or about the    15th day   of
August  A.D., 1988,  in  said  county   and  state,  and  anterior  to  the
presentment        of    this indictment,        DONALD ALLEN TURNER, did then and   there
with the intent          to arouse and gratify the sexual desire of      the said   DONALD
ALLEN     TURNER,        engage     in    sexual contact with LINDSEY  COLEMAN,   a  child
younger  than 17 years of age and not the spouse of the said  DONALD  ALLEN
TURNER,  by  then  and  there touching a part of the genitals of  the  said
LINDSEY COLEMAN,

                                                COUNT    VIII


           AND  THE  GRAND JURORS AFORESAID,   upon their oaths  aforesaid,  do
further     present in and to said court that on or about the 27th day of   May
A.D.,     1987,  in said county and state,   and anterior to the presentment of
this indictment,          DONALD ALLEN TURNER,          did    then and   there with    the intent      to
arouse  and  gratify  the sexual desire of the said  DONALD ALLEN   TURNER,
engage in sexual contact with S.J. a child younger than 17 years of age and
not the spouse of the said DONALD ALLEN TURNER,  by then and there touching
a part    of    the genitals of          the said S.J.,

                                                COUNT    IX


           AND     THE     GRAND JURORS AFORESAID,              upon their oaths       aforesaid,       do
further present in and to said court that on or about the 16th day of April
A.D.,   1989,  in said county and state,  and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse   and  gratify  the sexual desire of the said  DONALD  ALLEN   TURNER,
engage in sexual contact with ASHLEY HODGES,   a child younger than 17 years
of  age   and not the spouse of the said DONALD ALLEN TURNER,  by   then  and
there touching a part of the genitals of the said ASHLEY HODGES,

                                                COUNT    X


        AND  THE  GRAND JURORS AFORESAID,  upon their oaths  aforesaid,  do
further present in and to said court that on or about the 16th day of April
A.D.,  1989,  in said county and state,  and anterior to the presentment of
this indictment, DONALD ALLEN TURNER, did then and there with the intent to
arouse and gratify the sexual desire of the said DONALD ALLEN TURNER expose
a part of the genitals of the said DONALD ALLEN TURNER to ASHLEY HODGES, a
child  younger  than 17 years of age and not the spouse of the said DONALD
 r   AND THE GRAND JURORS AFORESAID, upon their oaths aforesaid, do further
present   in   and   to said court that all of the counts       contained         in     this
indictment are offenses which arose out of the same criminal episode by the
said DONALD ALLEN TURNER prior,to the presentment of this indictment,




                                                  I, ROSS BUSH, District Clerk,
                                                  Midland County, Texas, do hereby certify that
                                                  this is a true and correct copy as same appears
                                                  of record in my office^Witness
                                                                       u Witness rnjjhand
                                                                                 rnv      and
                                                  seal of office on.                     ..,«•»"""»*»»,.
                                                                                       yo-3-n




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                     GLORIA UDDLEY
                          Notary Public
                      STATE OF TEXAS
                    MyComm. Exp.05-26-20
                     Notify ID #516017-8
     Case Number 15,796
     142nd district court, Midland, TX.

     My name was Tiffarty Turner at the time. I was at this trial and the following people were there
     and able to testify:

     Sybill Hubbard
     Starla Redding
     Kelly McCarty
     Jennifer Mason
     Whitney Grey
     Colleen McCarty
     Ashley Hodges
     Ashley Hodges



     Signed:
               CW^/ Ha         *&                 /if^f*^ W'          (ajJJ    y~Hy



State of Washington )
                 /    : ss.

County of Snohomish)

      On this _7 ... day of Cl+<4*o-          _, in the year %?i2 „before me
 "^3m P.Ghjmflto&ffi- . personally appeared rifeW Tun^ k*,.<ll^ m^
known to me to be the person(s) whose name is subscribed to thislnstrument,
and acknowledged that he/she executed it.

                                          Witness my hand and official seal.


                                                      YT
                                          ^tary^Public in and for the State
                                          Of Washington residing atJ^Wi_
                                          My commission expires o >-o ^— >oy
                                                                                               ifi<3^iiwH"ir^A&via^'V'".>-'M''--.V*i*'
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