in Re Jeffery Allen Whitfield ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00170-CR
In re Jeffery Allen Whitfield
FROM THE 264TH DISTRICT COURT OF BELL COUNTY
NO. 63048, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Jefferey Allen Whitfield, appearing pro se, seeks to appeal the
trial court’s denial of his post-conviction motion for DNA testing. See Tex. Code Crim. Proc.
arts. 64.01-.05. This Court’s appellate jurisdiction in a criminal case is invoked by a timely filed
notice of appeal. See Castillo v. State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012) (“Timely
filing of a written notice of appeal is a jurisdictional prerequisite.”). Under the Texas Rules of
Appellate Procedure, a criminal defendant must file his notice of appeal within thirty days after
the day sentence is imposed or suspended in open court, or after the day the trial court enters an
appealable order—or within ninety days, if he timely files a motion for new trial. Tex. R. App.
P. 26.2(a)(1)-(2); see Tex. Code Crim. Proc. art. 64.05 (“An appeal under [Chapter 64] is to a
court of appeals in the same manner as an appeal of any other criminal matter . . . .”).
In this case, the trial court signed the appealable order denying Whitfield’s motion
for DNA testing on February 2, 2021. Because no motion for new trial was filed, the deadline
for Whitfield to file his notice of appeal was March 4, 2021. Whitfield filed his notice of appeal
on April 5, 2021. Because Whitfield did not timely file his notice of appeal, we lack jurisdiction
to address the merits of this appeal.1 See Davis v State, 502 S.W.3d 803, 803 (Tex. Crim. App.
2016) (per curiam order) (explaining appellant’s recourse for untimely notice of appeal from
denial of motion for DNA testing is to file another motion for DNA testing). Accordingly, we
dismiss this appeal for want of jurisdiction.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Triana and Kelly
Dismissed for Want of Jurisdiction
Filed: November 10, 2021
Do Not Publish
1
Rule 4.6 of the Rules of Appellate Procedure, which became effective November 1,
2018, provides a procedural mechanism for extending the appellate deadline for filing a notice of
appeal from an adverse ruling on a motion for post-conviction DNA testing when neither the
adversely affected defendant nor his attorney received notice or acquired actual knowledge of
the appealable order within twenty days of its signing. Tex. R. App. P. 4.6. To invoke this
mechanism, the defendant must file, within 120 days after the signing of the appealable order, a
written, sworn motion for additional time to file a notice of appeal, stating (1) his desire to
appeal, and (2) the earliest date he or his attorney received notice or acquired actual knowledge
that the trial judge signed the order. The term “sworn” in Rule 4.6 includes the use of an
unsworn declaration made under penalty of perjury. Id. (comment to 2018 change to add
Rule 4.6; citing Tex. Civ. Prac. & Rem. Code § 132.001).
In this case, Whitfield’s pro se notice of appeal states that he wishes to appeal the trial
court’s denial of his motion for DNA testing and that due to delays in the prison mailroom, he
did not receive notice that the trial court had signed an order until March 23, 2021, after the
deadline to file his notice of appeal. In addition, the notice’s certificate of service states that “all
is true and correct.” Whitfield’s notice of appeal does not, however, include the phrase “under
penalty of perjury.” See Bahm v. State, 219 S.W.3d 391, 394 (Tex. 2007) (explaining that “the
only phrase that the Legislature actually mandates should be included in such declarations [under
Section 132.001] is ‘under penalty of perjury’”). As such, to the extent the trial court could have
otherwise construed Whitfield’s notice of appeal as a motion for additional time, it is not
“sworn,” as required by Rule 4.6. See Tex. Civ. Prac. & Rem. Code § 132.001(c), (e) (form for
unsworn declaration by inmate).
2