Charles Elvis Raby v. State

• Court: Court of Appeals of Texas
• Decided: May 13, 2009
• Docket: 09-09-00164-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-09-00164-CR

CHARLES ELVIS RABY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 75th District Court

Liberty County, Texas

Trial Cause No. CR24500

MEMORANDUM OPINION

On April 8, 2009, Charles Elvis Raby filed a notice of appeal from an order denying appointment of counsel for DNA testing. The trial court signed an order denying Raby's motion for DNA testing on February 4, 2009. The notice of appeal was filed with the trial court more than thirty days after the date the trial court signed the order denying Raby's motion and outside the time for requesting an extension of time for filing the notice of appeal. We notified the parties that the notice of appeal did not appear to have been timely filed. Raby filed a response in which he complained that he did not receive a copy of the order denying his motion for DNA testing until February 25, 2009, twenty-one days after the trial court signed the order.

The time for filing an appeal runs from the denial of the postconviction motion for DNA testing. See Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006). The notice of appeal was not timely filed. See Tex. R. App. P. 26.2(a)(1). No motion for extension of time was timely filed. See Tex. R. App. P. 26.3. It does not appear that the appellant obtained an out-of-time appeal from the Court of Criminal Appeals. The Court finds it is without jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed for want of jurisdiction.

APPEAL DISMISSED.

STEVE McKEITHEN

Chief Justice

Opinion Delivered May 13, 2009

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.