Lawrence Wayne Atkins v. State ( 2006 )

Dismissed and Memorandum Opinion filed June 29, 2006

Dismissed and Memorandum Opinion filed June 29, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-06-00493-CR

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LAWRENCE WAYNE ATKINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 34410

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of the offenses of aggravated sexual assault and prohibited sexual conduct and sentenced to confinement for life in the Institutional Division of the Texas Department of Criminal Justice on October 9, 1998.  His conviction was affirmed in an unpublished opinion.  See Atkins v. State, No. 14-98-01368-CR (Tex. App.CHouston [14th Dist.] 2001, no pet.) (not designated for publication). 

On March 6, 2006, appellant filed a motion for appointment of counsel to seek DNA testing pursuant to Article 64 of the Code of Criminal Procedure.  The State filed a motion to deny counsel, asserting that appellant had not shown reasonable grounds for obtaining DNA testing that would entitle him to appointment of counsel.  See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. Pamph. 2005).  By order signed April 17, 2006, the trial court denied appellant=s motion.  Appellant=s notice of appeal was not filed until May 25, 2006.^[1] 

A defendant=s notice of appeal must be filed within thirty days after the court enters an appealable order.  See Tex. R. App. P. 26.2(a)(1).  A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal.  Under those circumstances it can take no action other than to dismiss the appeal.  Id.

Appellant=s notice of appeal, filed more than thirty days after the trial court signed its order,  is untimely.  Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed June 29, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  We note that appellant may not benefit from the mailing rule because his certificate of service states that he deposited the notice of appeal in the Institutional mailing system on May 23, 2006, more than thirty days after the court=s order was signed.  See Tex. R. App. P. 9.2(b) (requiring document to be deposited in mail on or before last day for filing to be timely).