Adrian Thaddeus Wilson v. State

• Court: Court of Appeals of Texas
• Decided: July 31, 2015
• Docket: 02-15-00114-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-15-00114-CR

ADRIAN THADDEUS WILSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 0884780D

MEMORANDUM OPINION1

Appellant Adrian Thaddeus Wilson was convicted of aggravated robbery,

and this court affirmed his conviction on November 4, 2004. Wilson v. State, 151

S.W.3d 694, 696 (Tex. App.—Fort Worth 2004, pet. ref’d). On February 22,

2011, Appellant filed a postconviction motion for forensic DNA testing. See Tex.

Code Crim. Proc. Ann. art. 64.01(a-1) (West Supp. 2014). On February 27,

1 See Tex. R. App. P. 47.4. 2013, the trial court denied Appellant’s motion “because no biological evidence

exists to be tested.” See id. art. 64.03(a)(1)(A)(i) (West Supp. 2014). Appellant

filed a notice of appeal from the trial court’s order on April 9, 2015.

On April 13, 2015, we notified Appellant that it appeared that we lacked

jurisdiction over this appeal because the notice of appeal was not timely filed.

See Tex. R. App. P. 26.2(a). We advised him that this appeal could be

dismissed for want of jurisdiction unless he, or any party desiring to continue the

appeal, filed a response showing grounds for continuing the appeal on or before

April 23, 2015. See Tex. R. App. P. 44.3. In addition to addressing the merits of

his attempted appeal, Appellant claimed in his response that he did not receive

notice of the trial court’s February 2013 order until March 5, 2014, in violation of

his Fifth, Sixth, and Fourteenth Amendment rights.

Our appellate jurisdiction is triggered through a timely notice of appeal.

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). If a notice of appeal

is not timely filed under rule 26.2, we do not have jurisdiction to address the

merits of the appeal and may take no action other than dismissal. Slaton v.

State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998). An appeal from the denial

of a motion for DNA testing is treated in the same manner as an appeal from any

other criminal matter. Tex. Code Crim. Proc. Ann. art. 64.05 (West 2006). Rule

26.2(a) requires that a notice of appeal be filed within thirty days after the date

the trial court enters an appealable order. Tex. R. App. P. 26.2(a). Appellant did

not file his notice of appeal within thirty days of the trial court’s February 27, 2013

2 order. Appellant’s assertion of lack of timely notice of the trial court’s order does

not affect the appellate timetable. See Davis v. State, No. 02-14-00390-CR,

2014 WL 5409570, at *1 (Tex. App.—Fort Worth Oct. 23, 2014, pet. ref’d) (mem.

op., not designated for publication); Nevels v. State, No. 10-08-00246-CR, 2008

WL 3509287, at *1 (Tex. App.—Waco Aug. 13, 2008, no pet.) (mem. op., not

designated for publication). Therefore, we have no jurisdiction over his appeal

and dismiss the appeal for that reason. See Tex. R. App. P. 43.2(f).

PER CURIAM

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: July 30, 2015