Richard Wayne Henderson v. The State of Texas--Appeal from 204th Judicial District Court of Dallas County (memorandum opinion )
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Dismissed and Opinion Filed February 5, 2013 n In The Qjtiiirt uf 13fat!I iftI! iitrict uf xas at Da1ta No. 05-12-01562-CR RICHARD WAYNE HENDERSON, Appellant V. THE STATE OF TEXAS, Appdllee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F00-55020-Q MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion by Justice Moseley In 2001, Richard Wayne Henderson was convicted of aggravated sexual assault of a child. Pursuant to a plea agreement, punishment was assessed at ten years imprisonment and a $5,000 fine. In 2009, appellant filed a motion for post-conviction DNA testing. The trial court denied the motion by written order dated March 26. 2010. Appellant s pro file-stamped October 26, 2012. The Court now se notice of appeal is has before it the State s motion to dismiss the appeal for want ofjurisdiction, citing the untimeliness of appellant s notice of appeal. We agree we lack jurisdiction over the appeal. Jurisdiction concerns the power of a court to hear and determine a case. Olivo v. State, 918 SW.2d 519, 522 (Tex. Crirn. App. 1996). The jurisdiction of an appellate court must be legally invoked, and, if not, the power of the court to act is as absent as if it did not exist. See id. at 523. 10 invoke the court s jurisdiction, an appellant must tile his notice of appeal within the time period provided by the rules of appellate procedure See it!.: see also S latoii v. Stair . 98 1 S.W.2d 208. 2 10 (Tex. ( rim. App. App. 1998) (per curiam ). A notice of appeal from an order denying a motion for postconvictio n L)NA testing imist be filed within thirty days of the dale the order is signed. See Welsh v. State, 108 S.W.3d 921, 923 (Tex. App.- DaIIas 2003, no pet,). A pro se prisoner is deeme d to have filed his pleadings at the time they are delivered to prison authorities for forwar ding to the court clerk. (Azrnpbell, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010). To he timely, appellant s notice of appeal was due by Monda y, April 26, 2010. See TF:x. R. APP. p. 4.1(a). 26.2(a)(l . To obtain the benefit of the mailbox rule, appellant had to deliver his notice ot appeal to prison authorities for mailing on or before April 26, 2010. See TEx. R. App. P. 9.2(b) Campbell, 320 S.W.3d at 342. The first pro se document tiled in the trial court after March 26, 2010 is a document entitled Objection- Motion fbr Doctrine of Estoppe1 Actual innocence Factual Innocence Motion to Vacate, Set Aside, or Correct Sentence - Assistance of Counsel Motion for Judgment of Acquittal. This document was file-stamped February 8, 2011. The letter accompanying the document indicates that appella nt sent the original copy of the document to the trial court on or about April 25, 2010. The date below appellant s signature on the letter is January 31, 2010. This document does not reference the trial court s March 26, 2010 order, let alone seek any relief from that order. The first document in the record that seeks appellate relief is appellant s October 26, 2012 notice of appeal. Nothing in the record before the Court shows appellant deliver ed to prison authorities on or before April 26, 2010 a notice of appeal from the trial court s March 26, 2010 order denying it appears this date was probably supposed to be Januar y 31, 2011 given that appellant references an action he already took on or about April 25. 2010 rather than an action he intended to take on April 25. 2010. his motion for post-conviction DNA testing. Therefore, we conclu de we lack jurisdiction over the appeal. We grant the State s January Il, 2013 motion to dismis s the appeal. We dismiss the appeal for want ofjurisdiction / fl (/1/1 V / itwi I Do Not Publish Ttx. R. An. P.47 121 562F.U05 3 ni Apijezt1i .fiftIi t1itrict nf ixaa it hittui (ønrt JUDGMENT Richard Wayne Flenderson, Appellant No. 05-12-01562-CR V. The State of Texas, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F00-55020-Q. Opinion delivered by Justice Moseley, Justices Francis and Lang participating. Based on the Court s opinion of this date, we DISMISS the appeal for want of ju ii sdiction. Judgment entered this 5th day of February, 2013. / I / I JiM MOSELEY / JUS TICE V I
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