NO. 07-12-00281-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 19, 2012
ERASMO GONZALES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 69TH DISTRICT COURT OF DALLAM COUNTY;
NO. 3320D; HONORABLE RON ENNS, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On May 7, 2012, the 69th District Court of Dallam County entered an order
denying a motion for forensic DNA testing that had been filed by appellant, Erasmo
Gonzales. On June 29, 2012, appellant filed his notice of appeal of this order. We
dismiss for want of jurisdiction.
As applicable to this case, 1 a notice of appeal is due no later than thirty days
after the date the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). A
1
An appeal of an order denying a motion for forensic DNA testing is subject to
the same rules as an appeal of any other criminal matter. TEX. CODE CRIM. PROC. ANN.
art. 64.05 (West 2006).
timely and proper notice of appeal invokes this Court’s jurisdiction. State v. Riewe, 13
S.W.3d 408, 410 (Tex.Crim.App. 2000). The thirty day deadline for filing notice of
appeal can be extended if, within fifteen days of the deadline, appellant files a notice of
appeal with the trial court clerk and also files a motion for extension of time that
complies with Rule 10.5(b) of the Texas Rules of Appellate Procedure in this Court. 2
See TEX. R. APP. P. 26.3. This Court has no authority to invoke Rule 2 of the Texas
Rules of Appellate Procedure to enlarge the time in which to file a notice of appeal. See
TEX. R. APP. P. 2; Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).
Under the applicable rules, appellant’s notice of appeal was due on June 6,
2012. However, appellant did not file his notice of appeal until June 29, fifty-three days
after the trial court entered its appealable order. 3 Furthermore, appellant failed to file a
motion for extension of time to file his notice of appeal. As such, appellant failed to
invoke this Court’s jurisdiction. Because this Court is without jurisdiction to address the
merits of this appeal, we have no authority to take any action other than to dismiss the
appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998); Olivo v. State,
918 S.W.2d 519, 523 (Tex.Crim.App. 1996).
By letter dated August 7, 2012, this Court notified appellant that it appeared that
his notice of appeal was untimely filed and failed to invoke this Court’s jurisdiction, and
2
Unlike in civil cases, a motion for extension of time cannot be implied. Cf.
Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997).
3
Even though appellant erroneously filed his notice of appeal with the Clerk of
this Court, the Clerk is obligated to record the date the notice was received and to
forward the notice to the trial court clerk. See TEX. R. APP. P. 25.2(c)(1).
2
directed him to file a response with the Court by September 5, explaining how this Court
has jurisdiction over the appeal. To date, we have received no response from
appellant.
As such, we now dismiss the purported appeal for want of jurisdiction.
Mackey K. Hancock
Justice
Do not publish.
3