Phillips v. State

Full title: DARRELL WAYNE PHILLIPS APPELLANT v. THE STATE OF TEXAS STATE

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Date published: Jan 22, 2015

NO. 02-14-00489-CR (Tex. App. Jan. 22, 2015)

Opinion

NO. 02-14-00489-CR

01-22-2015

DARRELL WAYNE PHILLIPS APPELLANT v. THE STATE OF TEXAS STATE

PER CURIAM

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 0557784D
MEMORANDUM OPINION¹

1 See Tex. R. App. P. 47.4.

On June 9, 2014, the trial court denied appellant's pro se motion requesting DNA testing, which he filed under chapter 64 of the code of criminal procedure.² After the due date for a notice of appeal but within the time period for requesting an extension of time to file a notice of appeal, appellant filed a notice of appeal.³See Tex. R. App. P. 26.2(a)(1), 26.3; see also Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006) ("[A] DNA movant must meet applicable filing and time requirements found in the Rules of Appellate Procedure."). But he did not file a timely motion to extend the time to file his notice of appeal. See Tex. R. App. P. 26.3. Later, appellant filed a "subsequent" notice of appeal. The trial court appointed counsel to represent appellant on appeal.

2 See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (West 2006 & Supp. 2014).

3 Appellant's original notice of appeal bears a file-stamped date of July 22, 2014. His certificate of service on the notice of appeal states that he sent it to the district clerk on July 13, 2014.
--------

On December 5, 2014, we sent a letter to appellant that expressed our concern that we lack jurisdiction because the notice of appeal was not timely. We informed appellant that unless he filed a response showing grounds for continuing the appeal, it could be dismissed. Appellant filed a response in which he agreed that we lack jurisdiction and conceded that dismissal is appropriate. Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 25.2(b), 26.2(a), 26.3(b), 43.2(f); see also Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) ("When a notice of appeal is filed within the fifteen-day [extension] period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction."); Brock v. State, No. 02-14-00310-CR, 2014 WL 5492730, at *1 (Tex. App.—Fort Worth Oct. 30, 2014, no pet.) (mem. op., not designated for publication) (applying Olivo).

PER CURIAM PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2015