In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00131-CR
ANTWON TAYLOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court
Bowie County, Texas
Trial Court No. 09F0343-202
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Antwon Taylor has filed an untimely notice of direct appeal from the trial court’s denial of
his motion for forensic DNA testing.1 We dismiss the appeal for want of jurisdiction.
This Court may consider a direct appeal only if it is filed within the timetables set out by
the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 25.2, 26.2. Under Rule 26.2, a notice
of appeal in a criminal case must be filed within 30 days “after the day the trial court enters an
appealable order.” TEX. R. APP. P. 26.2(a)(1). That thirty-day deadline is extended to ninety days
if a motion for new trial is timely filed in the trial court. TEX. R. APP. P. 26.2(a)(2). In the absence
of a notice of appeal filed within those time frames, this Court has no jurisdiction to consider an
appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see Slaton v. State, 981
S.W.2d 208, 209 n.3 (Tex. Crim. App. 1998) (per curiam).
In August 2009 and pursuant to a plea agreement with the State, Taylor pled guilty to and
was convicted of failure to appear.2 In May 2017, Taylor filed a motion for forensic DNA testing
in the trial court, and that motion was denied by the trial court on May 16, 2017. Taylor did not
file a motion for new trial in the trial court; consequently, his notice of appeal from the trial court’s
May 16 order was due on or before June 15, 2017. Taylor filed his notice of appeal on June 16,
2017, one day beyond that deadline, making it untimely.
1
See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2016), art. 64.05 (West 2006).
2
See TEX. PENAL CODE ANN. § 38.10 (West 2016). Taylor was also convicted at the same time of sexual assault of a
child, and he filed the same motion for forensic DNA testing in that case. His appeal of the trial court’s denial of that
motion is addressed under our cause number 06-17-00130-CR.
2
We notified Taylor by letter that his notice of appeal appeared to be untimely and that the
appeal was subject to dismissal for want of jurisdiction. We gave Taylor twenty days to respond
to our letter and demonstrate how, notwithstanding the defects herein noted, we had jurisdiction
over the appeal. Taylor filed a response indicating that he did not receive notice of the trial court’s
order until May 23, 2017, and requesting that we calculate his filing deadline from the date he
received notice rather than the date the order was entered.3 While the power of Taylor’s argument
is lost on neither this Court nor the Court of Criminal Appeals, we lack the authority to create
jurisdiction where none exists.
Because Taylor did not timely file his notice of appeal, we dismiss the appeal for want of
jurisdiction.
Bailey C. Moseley
Justice
Date Submitted: August 14, 2017
Date Decided: August 15, 2017
Do Not Publish
3
The Court of Criminal Appeals of Texas and the Texas Supreme Court recently adopted Rule 4.6 of the Texas Rules
of Appellate Procedure specifically to address situations such as this in which there is a delay between the time the
trial court enters its order denying a motion for forensic DNA testing and the time the movant receives notice of that
order. See Court of Criminal Appeals of Texas, Order Adopting Texas Rule of Appellate Procedure 4.6, Misc. Docket
No. 17-007 (June 5, 2017); Supreme Court of Texas, Order Adopting Texas Rule of Appellate Procedure 4.6, Misc.
Docket No. 17-9061 (June 13, 2017). Unfortunately for Taylor, that new rule does not take effect until September 1,
2017.
3