Raymond Glynn Reed v. State ( 2006 )

Opinion filed February 9, 2006

Opinion filed February 9, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00406-CR

                                                    __________

                                RAYMOND GLYNN REED, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                Trial Court Cause No. CR-17,708

                                                                   O P I N I O N

This is an appeal from an order denying Raymond Glynn Reed=s motion for forensic DNA testing pursuant to Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005).  We dismiss the appeal for want of jurisdiction.

The record before this court reflects that the trial court signed the order on November 7, 2005, and that appellant filed his pro se notice of appeal on December 13, 2005, thirty-six days after the date the order was signed.  Therefore, this notice of appeal is not timely pursuant to Tex. R. App. P. 26.2(a).  On January 24, 2006, appellant=s counsel filed a motion to consider the notice of appeal timely.  This motion is not timely pursuant to Tex. R. App. P. 26.3.

After the clerk=s record was received, the clerk of this court wrote the parties on December 20, 2005, and on January 11, 2006, advising the parties that it appeared an appeal had not been timely perfected and requesting that appellant respond showing grounds for continuing the appeal.  The clerk noted in both letters that, if the notice of appeal was timely mailed pursuant to Tex. R. App. P. 9.2(b), appellant should establish that timely mailing in a motion.

Attached to appellant=s motion to consider the notice of appeal timely is a copy of a handwritten letter addressed to this court stating that the notice of appeal was timely mailed to counsel. However, the motion does not establish that the notice of appeal was sent by United States Mail to the clerk of the trial court in a properly addressed and stamped envelope deposited on or before the last day of filing.  Rule 9.2(b)(1), (2).

Absent a timely notice of appeal or compliance with Rule 26.3, this court lacks jurisdiction to entertain an appeal.  Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993); Shute v. State, 744 S.W.2d 96 (Tex. Crim. App. 1988).

Therefore, the motion is overruled and the appeal is dismissed.

PER CURIAM

February 9, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.