Gregory McCain v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00459-CR
GREGORY MCCAIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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OPINION
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Appellant Gregory McCain filed a post-conviction motion for forensic DNA
testing. 1 See Tex. Code Crim. Proc. Ann. art. 64.01(a-1) (West Supp. 2013). On
July 1, 2013, the trial court denied Appellant’s motion “because no evidence
containing biological material exists in a condition making DNA testing possible.”
See id. art. 64.03(a)(1)(A)(i) (West Supp. 2013). Appellant contends he did not
1
We do not have any information regarding Appellant’s underlying
conviction.
receive notice of the trial court’s denial until August 13, 2013. 2 Appellant’s notice
of appeal from the trial court’s order was postmarked August 23, 2013, but was
not filed until September 19, 2013.
On September 27, 2013, we notified Appellant that we had not received a
certification of his right to appeal and that his notice of appeal appeared to be
untimely. See Tex. R. App. P. 25.2(d), 42.3. On October 7, 2013, Appellant filed
a motion for extension of time to ensure the certification was filed. Appellant also
filed a motion to hold the clerk in contempt for failure to submit the certification to
this court. Appellant has not responded to our notice that his notice of appeal
was untimely.
Our appellate jurisdiction is triggered through a timely notice of appeal.
Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If a notice of appeal
is not timely filed under Rule 26.2, we do not have jurisdiction to address the
merits of the appeal and may take no action other than dismissal. Slaton v.
State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). An appeal from the denial
of a motion for DNA testing is treated in the same manner as an appeal from any
other criminal matter. Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006). Rule
26.2(a) requires that a notice of appeal be filed within thirty days after the date
2
We note that when Appellant received notice of the denial is not
considered in calculating the deadline to file his notice of appeal. Compare Tex.
R. App. P. 4.2, with Tex. R. App. P. 26.2(a).
2
the trial court enters an appealable order. 3 Tex. R. App. P. 26.2(a). Appellant
did not file his notice of appeal within thirty days of the trial court’s July 1, 2013
order. Therefore, we have no jurisdiction over his appeal and dismiss the appeal
for that reason. See Tex. R. App. P. 43.2(f). Because we have no jurisdiction,
we may not decide Appellant’s two pending motions. See Slaton, 981 S.W.2d at
210.
PER CURIAM
PANEL: GABRIEL, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.
DAUPHINOT, J., filed a concurring opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 21, 2013
3
A notice of appeal also is timely if filed within 45 days after the appealable
order is signed and accompanied by a compliant motion for extension. Tex. R.
App. P. 26.3. Appellant did not file a compliant motion to extend the time to file
his notice of appeal, and his notice of appeal was filed outside of the 45-day
deadline.
3