Elton Ortiz v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-10-273-CR
ELTON ORTIZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Elton Ortiz attempts to appeal from the trial court’s May 4, 2010
order denying his motion for postconviction DNA testing. Appellant untimely filed
his notice of appeal on June 10, 2010. See Tex. R. App. P. 26.2(a)(1);
Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006).
We sent appellant a letter expressing our concern that we lack jurisdiction
over the appeal, and appellant responded to the letter on July 20, 2010, by filing
an untimely motion to extend the time to perfect the appeal. See Tex. R. App. P.
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See Tex. R. App. P. 47.4.
26.3(b) (explaining that a motion to extend time to file a notice of appeal must be
filed within fifteen days after the deadline for filing the notice of appeal); Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (―A court of appeals may
grant an extension of time to file notice of appeal if the notice is filed within fifteen
days after the last day allowed and, within the same period, a motion is filed in
the court of appeals reasonably explaining the need for the extension of time.‖);
Pickens v. State, 105 S.W.3d 746, 748–49 (Tex. App.—Austin 2003, no pet.);
State v. Zavala, 17 S.W.3d 356, 358 (Tex. App.—Corpus Christi 2000, pet. ref’d).
Because neither appellant’s notice of appeal nor his motion for an extension of
time to file the notice of appeal were timely, we deny the extension motion and
dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 25.2(b), 26.2,
26.3, 43.2(f); Swearingen, 189 S.W.3d at 781 (―The notice of appeal was
untimely filed. The appeal is dismissed.‖).
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 19, 2010
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