Lanny Marvin Bush v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 7, 2023
• Docket: 11-23-00129-CR
• Status: Published

Opinion

Opinion filed July 7, 2023

In The

Eleventh Court of Appeals ___________

No. 11-23-00129-CR ___________

LANNY MARVIN BUSH, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court Coleman County, Texas Trial Court Cause No. CR02602

MEMORANDUM OPINION Appellant, Lanny Marvin Bush, has filed an untimely notice of appeal in this cause. Appellant attempts to appeal from an order denying his motion for forensic DNA testing. We dismiss the appeal. The documents on file in this case indicate that the trial court signed its order on March 24, 2023, and that the notice of appeal was filed in the district clerk’s office on May 30, 2023. Appellant’s notice of appeal was due to be filed within thirty days after the date that the trial court signed its order. See TEX. R. APP. P. 26.2(a)(1); see also TEX. CODE CRIM. PROC. ANN. art. 64.05 (West 2018). A notice of appeal must be in writing and filed with the clerk of the trial court. TEX. R. APP. P. 25.2(c)(1). The documents on file in this court show that Appellant’s notice of appeal was filed sixty-eight days after the trial court’s order was signed. The notice of appeal was, therefore, untimely. Absent a timely filed notice of appeal or the granting of a timely motion for extension of time, we do not have jurisdiction to entertain this appeal. See Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006); see also Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996); Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993). When the appeal was filed in this court, we notified Appellant by letter that the notice of appeal appeared to be untimely and that the appeal may be dismissed for want of jurisdiction. We requested that Appellant respond to our letter and show grounds to continue. Appellant filed a response and a “motion to proceed” but has not shown any grounds upon which this appeal may proceed. Because we lack jurisdiction over his appeal, we have no jurisdiction to consider his motion to proceed. See Gowan v. State, No. 02-16-00140-CR, 2016 WL 2989952, at *1 (Tex. App.—Fort Worth May 19, 2016, no pet.) (mem. op., not designated for publication). We dismiss Appellant’s motion and this appeal for want of jurisdiction.

W. STACY TROTTER JUSTICE July 7, 2023

Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 2