John D. Moore v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-181-CR
JOHN D. MOORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant John D. Moore attempts to appeal from the order on his motion
for DNA testing, which the trial court denied on January 5, 2010. Moore filed his
notice of appeal on April 26, 2010, although it was due on February 4, 2010. See
Tex. R. App. P. 26.2(a)(1).
On May 19, 2010, we sent a letter to Moore stating that we were
concerned that we may not have jurisdiction over his appeal because his notice
of appeal was not timely filed. We stated that the appeal could be dismissed for
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See Tex. R. App. P. 47.4.
want of jurisdiction unless he or any party desiring to continue the appeal filed
with this court a response showing grounds for continuing the appeal. See Tex.
R. App. P. 44.3. Moore filed a response contending that this court has
jurisdiction over his appeal because he did not receive notice of the order until
April 6, 2010.
Our appellate jurisdiction over a criminal appeal is triggered through a
timely notice of appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim.
App. 1996). Although a party who does not receive notice of a judgment or order
is given additional time to file a notice of appeal in a civil case, there is no
comparable rule for criminal cases. See Tex. R. App. P. 4.2; Tex. R. Civ. P.
306a. But see Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769
S.W.2d 554, 557 (Tex. Crim. App. 1989) (stating that an out-of-time appeal may
be granted in the exercise of original habeas jurisdiction). In the absence of a
timely notice of appeal, a court of appeals does not obtain jurisdiction to address
the merits of the appeal in a criminal case and can take no action other than to
dismiss the appeal. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998).
Accordingly, we dismiss this appeal for want of jurisdiction.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 19, 2010
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