Joseph Wayne Hunter v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 24, 2021
• Docket: 05-21-00686-CR
• Status: Published

Opinion

Dismiss and Opinion Filed August 24, 2021

In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00686-CR

JOSEPH WAYNE HUNTER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. F13-56295-R

MEMORANDUM OPINION Before Justices Schenck, Reichek, and Carlyle Opinion by Justice Carlyle Joseph Wayne Hunter seeks to challenge the trial court’s January 15, 2021

denial of his motion for forensic DNA testing and for the appointment of counsel.

On August 9, 2021, he filed a motion for an extension of time to file his notice of

appeal. We dismiss this appeal.

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, 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); TEX. R. APP. P. 26.2(a). 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. art. 64.05. Rule 26.2(a) requires that, absent a timely motion

for new trial, a notice of appeal must be filed within thirty days after the date the

trial court enters an appealable order. Appellant did not file his notice of appeal

within thirty days of the trial court’s order because, according to him, he did not

receive timely notice of the trial court’s ruling. However, appellant’s assertion of

lack of timely notice does not affect our appellate timetable. See Davis v. State, 502

S.W.3d 803, 803 (Tex. Crim. App. 2016); Ex parte Suhre, 185 S.W.3d 898, 899 (Tex.

Crim. App. 2006).

Because we have no jurisdiction, we dismiss the appeal. See TEX. R. APP. P.

43.2(f).

210686f.u05 Do Not Publish /Cory L. Carlyle// TEX. R. APP. P. 47.2(b) CORY L. CARLYLE JUSTICE

–2– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSEPH WAYNE HUNTER, On Appeal from the 265th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F13-56295-R. No. 05-21-00686-CR V. Opinion delivered by Justice Carlyle. Justices Schenck and Reichek THE STATE OF TEXAS, Appellee participating.

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

Judgment entered this 24th day of August, 2021.

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