Southerland, Shirley Annette v. The State of Texas--Appeal from 180th District Court of Harris County

Opinion issued November 27, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01152-CR

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SHIRLEY ANN SOUTHERLAND, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 526673

MEMORANDUM OPINION

We are without jurisdiction to entertain this appeal from the denial of forensic DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2003). The trial judge signed the order denying DNA testing on January 11, 2002. The deadline for filing notice of appeal was therefore Monday, February 11, 2002, because the thirtieth day after sentencing fell on a weekend. Tex. R. App. P. 4.1(a), 26.2(a)(1). On March 20, 2002, 37 days after the deadline, appellant's counsel filed "Applicant's Notice of Appeal and Motion to Deem Notice Timely Filed."

"A court of appeals may grant an extension of time to file notice of appeal if the notice is filed within 15 days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time." Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605-06 (Tex. App.--Houston [1st Dist.] 1999, no pet.); see Tex. R. App. P. 26.2, 26.3. When a notice of appeal, but no motion for extension of time, is filed within the 15-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction. Olivo, at 523.

In the present case, neither the notice of appeal nor a motion for extension of time was timely filed. We are therefore without jurisdiction over this appeal.

The appeal is dismissed for lack of jurisdiction.

All pending motions are denied as moot.

It is so ORDERED.

PER CURIAM

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.