Evans, David Carl v. The State of Texas--Appeal from 184th District Court of Harris County

Dismissed and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-01093-CR

NO.  14-02-01094-CR

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DAVID CARL EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 333,758 & 333,759

O P I N I O N

On July 1, 1981, appellant was convicted of burglary of a habitation with intent to commit rape in cause number 333,758. On February 9, 1984, appellant entered a guilty plea to the offense of burglary of a habitation with intent to commit rape in cause number 333,759. On July 23, 2001, appellant filed a motion in each case for a hearing on his request for postconviction forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The trial court appointed counsel to represent appellant. Based upon evidence provided by affidavit, the trial court found that appellant had not met his burden to demonstrate that evidence exists and is in a condition making DNA testing possible. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1). Accordingly, on August 7, 2002, the trial court denied appellant=s request for DNA testing in each case.

On September 12, 2002, appellant filed a pro se notice of appeal in each case. A defendant=s notice of appeal must be filed within thirty days after the trial court enters an appealable order. See Tex. R. App. P. 26.2(a)(1). The thirtieth day after the trial court=s August 7, 2002 order was Friday, September 6, 2002. Thus, appellant=s notices of appeal are untimely.[1]

A notice of appeal which complies with the requirements of Rule 26 is essential to vest the court of appeals with jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal. Under those circumstances it can take no action other than to dismiss the appeal. See id.

Accordingly, the appeals are ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed November 14, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] The record contains the envelope in which the notices were mailed, and it bears a postmark of September 9, 2002. Because the notices were not deposited in the mail before the filing deadline, appellant may not benefit from the mailing rule. See Tex. R. App. P. 9.2(b).