Bennie Lee Nevels, Jr. v. The State of Texas--Appeal from 82nd District Court of Falls County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00246-CR

Bennie Lee Nevels, Jr.,

Appellant

v.

The State of Texas,

Appellee

From the 82nd District Court

Falls County, Texas

Trial Court No. 7868

MEMORANDUM Opinion

Bennie Lee Nevels, Jr. brings this appeal from an order denying his motion for postconviction DNA testing under Chapter 64 of the Code of Criminal Procedure. The trial court signed the order Nevels challenges on April 9, 2008. Nevels filed his notice of appeal by mailing it to the Clerk of this Court on July 14. See Tex. R. App. P. 9.2(b). We will dismiss the appeal because it is untimely.

Article 64.05 provides in pertinent part that an appeal of an adverse order under Chapter 64 is to a court of appeals in the same manner as an appeal of any other criminal matter. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon 2006). Thus, an appealing party under article 64.05 must file a notice of appeal within thirty days after entry of the order to properly invoke the jurisdiction of the court of appeals. See Swearingen v. State, 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006) (citing Tex. R. App. P. 25.2(b), 26.2(a)(1)).

In response to a notice from the Clerk, Nevels explained that he did not file his notice of appeal sooner because he did not know that the trial court had signed the order denying his motion. In civil cases, Rule of Civil Procedure 306a(4) extends the deadline for the filing of the notice of appeal when a party does not receive notice of the judgment within twenty days. Tex. R. Civ. P. 306a(4). However, there is no comparable provision for criminal cases.

Nevels filed his notice of appeal more than ninety days after entry of the order he is challenging. Therefore, because the notice of appeal is untimely, we dismiss the appeal. Id.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal dismissed

Opinion delivered and filed August 13, 2008

Do not publish

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