Babu Samuel Kalluvilayil v. State

Opinion

DISMISS; and Opinion Filed November 2, 2015.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01140-CR

BABU SAMUEL KALLUVILAYIL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F91-00956-H

MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Whitehill Babu Samuel Kalluvilayil was convicted of murder in 1991. Punishment was assessed at

life imprisonment and a $5,000 fine. The conviction was affirmed on direct appeal. Kalluvilayil

v. State, No. 05-91-00461-CR, 1992 WL 141385 (Tex. App.––Dallas June 22, 1992, no pet.) (op.

on reh’g). On January 22, 2014, appellant filed a motion for post-conviction DNA testing. The

motion was denied by written order on October 24, 2014. On December 12, 2014, appellant

filed pro se “Written Objections; and His Motion to Vacate the Judgment and Grant a New

Trial.” On January 26, 2015, appellant filed a pro se notice of appeal. The appeal was docketed

in this Court on September 15, 2015. We conclude we lack jurisdiction over the appeal.

“Jurisdiction concerns the power of a court to hear and determine a case.” Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. 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. To invoke this Court’s jurisdiction, appellant’s notice of appeal was due within thirty

days of the date the trial court’s order denying his motion for post-conviction DNA testing was

signed. See TEX. R. APP. P. 26.2(a)(1); Blanton v. State, 369 S.W.3d 894, 902 (Tex. Crim. App.

2012); Olivo, 918 S.W.2d at 523. Absent a timely notice of appeal, the Court has no authority to

take any action except to dismiss the appeal. See Olivo, 918 S.W.2d at 523; Slaton v. State, 981

S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam).

Appellant’s January 26, 2015 notice of appeal, which was accompanied by a declaration

of indigence that is hand-dated January 18, 2015, is untimely as to the October 24, 2015 order.

Therefore, we have no jurisdiction over the appeal from the order denying appellant’s motion for

post-conviction DNA testing. See Tex. R. App. P. 26.2(a)(1).

The clerk’s record contains a second notice of appeal, hand-dated- August 21, 2015, that

is appealing a July 7, 2015 order denying appellant’s request to have his fine and court costs

waived. The right to appeal in a criminal case is a statutorily created right. See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex.

Crim. App. 2004). See also TEX. CODE CRIM. P. ANN. art. 44.02 (West 2006) (providing right of

appeal for defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant). Appellate

courts may consider appeals by criminal defendants only after conviction or the entry of an

appealable order. See Wright v. State, 969 S.W.2d 588, 589 (Tex. App.––Dallas 1998, no pet.).

The July 7, 2015 order denying the motion to waive appellant’s fine and court costs is not

a judgment of conviction and is not an otherwise appealable order. See id. Accordingly, we

conclude we lack jurisdiction over the appeal from the July 7, 2015 order.

–2– We dismiss the appeal for want of jurisdiction.

/Bill Whitehill/ BILL WHITEHILL JUSTICE

Do Not Publish TEX. R. APP. P. 47

151140F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BABU SAMUEL KALLUVILAYIL, On Appeal from the Criminal District Court Appellant No. 1, Dallas County, Texas Trial Court Cause No. F91-00956-H. No. 05-15-01140-CR V. Opinion delivered by Justice Whitehill, Justices Lang and Evans participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, we DISMISS the appeal for want of jurisdiction.

Judgment entered this 2nd day of November, 2015.

–4–