Gary W. Lowe v. State

  















In The Court of Appeals Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-02-00157-CR ______________________________



GARY W. LOWE, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 87-0279

---

Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Grant

O P I N I O N

Gary W. Lowe has filed a motion to extend time to file his Notice of Appeal from the denial of his motion requesting forensic DNA testing pursuant to Tex. Code Crim. Proc. Ann. art. 64.01, et seq. (Vernon Supp. 2002). The order was entered on March 4, 2002. The Notice of Appeal was therefore due to be filed within thirty days, on or before April 3, 2002. Tex. R. App. P. 26.2(1). The time may be extended by a motion to extend time, but that motion must be filed no later than fifteen days after the deadline for filing the Notice of Appeal. That time expired on April 18, 2002. The motion to extend time was originally received by this court on August 12, 2002.

Without a timely filed notice of appeal, this court has no jurisdiction over the appeal. Rodarte v. State, 860 S.W.2d 108 (Tex. Crim. App. 1993). When we determine that we have no jurisdiction to decide the merits of an appeal, the proper action is to dismiss. Mendez v. State, 914 S.W.2d 579, 580 (Tex. Crim. App. 1996).

The appeal is dismissed for want of jurisdiction.

Ben Z. Grant

Justice

Date Submitted: September 4, 2002

Date Decided: September 5, 2002

Do Not Publish

;       "The timely filing of a notice of appeal is jurisdictional in this court, and absent a timely filed notice or extension request, we must dismiss the appeal." In re K.M.Z., No. 2-04-374-CV, 2005 Tex. App. LEXIS 690, at *2 (Tex. App.—Fort Worth Jan. 27, 2005, no pet.). To perfect appeal in a criminal case, the defendant's notice of appeal must be filed within thirty days from the date the trial court imposes sentence, unless a motion for new trial has been timely filed. Tex. R. App. P. 26.2(a)(1). In this case, Harper's pro se notice of appeal was untimely because it was not filed until more than thirty days after sentence was imposed.

          For the reasons stated, we dismiss the appeal for want of jurisdiction.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      October 17, 2005

Date Decided:         October 18, 2005

Do Not Publish