Whitson, John Eugene v. The State of Texas--Appeal from 263rd District Court of Harris County

Dismissed and Opinion filed December 5, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-01168-CR

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JOHN EUGENE WHITSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 431,583

M E M O R A N D U M O P I N I O N

After a jury trial, appellant was convicted of the offense of burglary of a building and sentenced to imprisonment for sixty years on January 15, 1986. By unpublished opinion filed October 2, 1986, this Court affirmed the judgment of conviction. See Whitson v. State, No. A14-86-052-CR, (Tex. App.CHouston [14th Dist.] October 2, 1986, no pet.) (per curiam) (not designated for publication).

On March 11, 2002, appellant filed a request for appointment of counsel for assistance in filing a motion for DNA testing pursuant to article 64 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01(c). The trial court appointed counsel who filed a motion for scientific testing of DNA evidence. On August 28, 2002, the trial court granted the motion. On September 6, 2002, the trial court adopted the State=s proposed findings of fact, concluding that appellant did not meet his burden to demonstrate that evidence still exists in a condition making DNA testing possible, and denied appellant=s request for DNA testing.

Appellant=s notice of appeal was not filed until October 30, 2002. On October 24, 2002, appellant filed a motion to extend time to file his notice of appeal. The motion is denied.

In criminal cases, the notice of appeal must be filed within thirty days after the trial court enters an appealable order. Tex. R. App. P. 26.2(a)(1). The appellate court may extend the time to filed the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, appellant files his notice of appeal in the trial court and files a motion for extension of time in the appellate court. Tex. R. App. P. 26.3. Appellant=s notice of appeal and motion for extension of time were not filed timely.

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 appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed December 5, 2002.

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

Do Not Publish Tex.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