Patrick Evans v. The State of Texas Appeal from Criminal District Court No. 2 of Tarrant County (memorandum opinion)
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00093-CR ___________________________ PATRICK EVANS, Appellant V. THE STATE OF TEXAS On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 0989458D Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION Appellant Patrick Evans attempts to appeal the trial court’s denial of his motion for postconviction forensic DNA testing. See Tex. Code Crim. Proc. 64.05. But Evans’s notice of appeal was untimely—it was due “within 30 days . . . after the day the trial court enter[ed] [the] appealable order,” Tex. R. App. P. 26.2(a)(1),1 but it was not filed until the forty-second day after the trial court entered the appealable order.2 “Our appellate jurisdiction is triggered through a timely notice of appeal.” McCain v. State, No. 02-13-00459-CR, 2013 WL 6157123, at *1 (Tex. App.—Fort Worth Nov. 21, 2013, no pet.) (per curiam) (not designated for publication) (dismissing for want of jurisdiction where appellant filed untimely appeal from order denying DNA testing); see Swain v. State, 319 S.W.3d 878, 880 (Tex. App.—Fort Worth 2010, no pet.) (per curiam) (mem. op.). Because Appellant’s notice of appeal is untimely, we lack jurisdiction and “can take no action other than to dismiss the appeal.” Manns, 2015 WL 5893122, at *1 (dismissing for want of jurisdiction where appellant filed untimely appeal from order denying DNA testing). Appellant did not file a motion for new trial. Cf. Tex. R. App. P. 26.2(a)(2). 1 When we notified Appellant of our jurisdictional concerns, see Tex. R. App. P. 44.3, Appellant explained that he had attempted to file a notice of appeal on an earlier date. But the record contains no evidence of an earlier notice of appeal, and “we cannot suspend the rules of appellate procedure to extend the time for filing a notice of appeal.” Manns v. State, No. 02-15-00247-CR, 2015 WL 5893122, at *1 (Tex. App.—Fort Worth Oct. 8, 2015, no pet.) (mem. op., not designated for publication). 2 2 Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f); Davis v. State, 502 S.W.3d 803, 803 (Tex. Crim. App. 2016) (order). /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: June 23, 2022 3
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