Opinion
No. 04-18-00147-CR
05-02-2018
Gerardo GUTIERREZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR4590
Honorable Juanita A. Vasquez-Gardner, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice DISMISSED FOR LACK OF JURISDICTION
This is an attempted appeal from an order denying a motion for forensic DNA testing under chapter 64 of the Texas Code of Criminal Procedure. An order denying a motion for forensic testing in a non-death penalty case is appealable to the court of appeals "in the same manner as an appeal of any other criminal matter." TEX. CODE CRIM. PROC. ANN. § 64.05 (West 2006). Under Rule 26.2 of the Texas Rules of Appellate Procedure, a notice of appeal in a criminal case must be filed within thirty days after the trial court enters an appealable order. See TEX. R. APP. P. 26.2(a)(1). This thirty-day deadline is extended to ninety days if a motion for new trial is timely filed in the trial court. See TEX. R. APP. P. 26.2(a)(2). In the absence of a timely-filed notice of appeal, a court of appeals has no jurisdiction over an appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).
In this case, the trial court signed an order denying appellant's request for forensic DNA testing on January 22, 2018. Because appellant did not file a motion for new trial, the notice of appeal was due on February 21, 2018. See TEX. R. APP. P. 26.2(a)(1). Appellant's notice of appeal was filed on March 9, 2018, and therefore, was untimely.
We ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant's court-appointed appellate counsel filed a response asserting that the thirty-day deadline for filing a notice of appeal should not apply to appellant because the trial court's order denying appellant's motion was not sent to appellant until February 20, 2018. Counsel essentially argues that because appellant was not made aware of the trial court's ruling in a timely manner, appellant was not required to comply with the thirty-day deadline for filing his notice of appeal. We disagree. In Davis v. State, the Texas Court of Criminal Appeals held that the court of appeals correctly dismissed an appeal from an order denying a motion for DNA testing when the appellant did not receive timely notice of the order and filed an untimely notice of appeal. 502 S.W.3d 803, 803 (Tex. Crim. App. 2016).
Because appellant filed an untimely notice of appeal, we have no jurisdiction over this appeal. See Olivo, 918 S.W.2d at 522. We, therefore, dismiss this appeal for lack of jurisdiction. See Davis, 502 S.W.3d at 803.
PER CURIAM Do not publish