Elton Ortiz v. State

Opinion

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-10-273-CR

ELTON ORTIZ

APPELLANT

V.

THE STATE OF TEXAS

STATE

------------

FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

MEMORANDUM OPINION[1]

          Appellant Elton Ortiz attempts to appeal from the trial court’s May 4, 2010 order denying his motion for postconviction DNA testing.  Appellant untimely filed his notice of appeal on June 10, 2010.  See Tex. R. App. P. 26.2(a)(1); Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006). 

          We sent appellant a letter expressing our concern that we lack jurisdiction over the appeal, and appellant responded to the letter on July 20, 2010, by filing an untimely motion to extend the time to perfect the appeal.  See Tex. R. App. P.

26.3(b) (explaining that a motion to extend time to file a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996) (“A court of appeals may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably explaining the need for the extension of time.”); Pickens v. State, 105 S.W.3d 746, 748–49 (Tex. App.—Austin 2003, no pet.); State v. Zavala, 17 S.W.3d 356, 358 (Tex. App.—Corpus Christi 2000, pet. ref’d).  Because neither appellant’s notice of appeal nor his motion for an extension of time to file the notice of appeal were timely, we deny the extension motion and dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 25.2(b), 26.2, 26.3, 43.2(f); Swearingen, 189 S.W.3d at 781 (“The notice of appeal was untimely filed.  The appeal is dismissed.”).

                                                                             PER CURIAM

PANEL:  LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED:  August 19, 2010

---

[1]See Tex. R. App. P. 47.4.