Opinion
04-23-00477-CR
05-10-2023
Detrick DEROVEN, Appellant v. The STATE of Texas, Appellee
From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 1996-CR-3437A Honorable Kristina Escalona, Judge Presiding
ORDER
PATRICIA O. ALVAREZ, JUSTICE
In trial court cause number 1996-CR-3437A, Appellant was tried by a jury and found guilty of capital murder-multiple persons. On November 20, 1997, the trial court sentenced Appellant to confinement in the Texas Department of Criminal Justice-Institutional Division for life.
On January 18, 2022, Appellant filed a motion for forensic DNA testing of evidence. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1). The State filed its response, and the trial court denied the motion on March 16, 2022. An appeal from the decision on a motion for forensic DNA testing "is to a court of appeals in the same manner as an appeal of any other criminal matter." Id. art. 64.05; see Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) ("[A]n order denying DNA testing is an 'appealable order' under Rule 25.2(a)(2).").
More than one year later, on April 27, 2023, Appellant filed a motion for leave to file a late notice of appeal of the denial of post-conviction DNA testing.
A timely notice of appeal is necessary to invoke a court of appeals' jurisdiction. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Absent a timely motion for new trial, a defendant's notice of appeal is timely filed if it is filed within thirty days after (1) the day sentence is imposed or suspended in open court, or (2) the day the trial court enters an appealable order. See TEX. R. APP. P. 26.2; Olivo, 918 S.W.2d at 522. In this case, the record indicates Appellant's notice of appeal was not timely filed.
A late notice of appeal may be considered timely and invoke a court of appeals' jurisdiction if it meets the following requirements:
(1) it is filed within fifteen days of the last day allowed for filing,
(2) a motion for extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing the notice of appeal, and
(3) the court of appeals grants the motion for extension of time.Olivo, 918 S.W.2d at 522; see also Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (stating that an out-of-time appeal from a final felony conviction may be sought by filing a writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure).
We ORDER Appellant to show cause in writing within TWENTY-ONE DAYS of the date of this order why this appeal should not be dismissed for want of jurisdiction. See Olivo, 918 S.W.2d at 522; Ater, 802 S.W.2d at 243.