Richard Stanley v. State

• Court: Court of Appeals of Texas
• Decided: March 30, 2017
• Docket: 02-17-00043-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-17-00043-CR

RICHARD STANLEY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F-93-1245-D

MEMORANDUM OPINION1

Appellant Richard Stanley attempts to appeal from the trial court’s October

26, 2016 order denying his motion for DNA testing. Stanley’s notice of appeal

was due no later than November 28, 2016. See Tex. R. App. P. 26.2(a)(1).

Stanley filed his notice of appeal on February 6, 2017.

1 See Tex. R. App. P. 47.4. On February 22, 2017, we notified Stanley of our concern that we lacked

jurisdiction over this matter because his notice of appeal was untimely filed. We

informed him that this appeal could be dismissed unless he, or any party desiring

to continue the appeal, filed a response showing grounds for continuing the

appeal on or before March 6, 2017. See Tex. R. App. P. 44.3. Stanley timely

filed a response to our jurisdiction letter.

In his response, Stanley points out that he did not receive notice of the trial

court’s order denying his motion for DNA testing until January 19, 2017, well after

the deadline to file his notice of appeal had passed. But the fact that Stanley did

not receive notice of the trial court’s order until after the appellate deadline

expired does nothing to confer us with jurisdiction over his appeal. See Davis v.

State, 502 S.W.3d 803, 803 (Tex. Crim. App. 2016) (order) (stating court of

appeals “correctly dismissed [appellant’s] appeal for lack of jurisdiction” where

notice of appeal was late due to appellant not receive timely notice of trial court’s

denial of his motion for DNA testing). A timely notice of appeal is essential to

vest this court with jurisdiction. See Olivo v. State, 918 S.W.2d 519, 522–23

(Tex. Crim. App. 1996). Accordingly, we dismiss this appeal for want of

jurisdiction.2 See Tex. R. App. P. 43.2(f); Davis, 502 S.W.3d at 803.

2 Stanley’s response also included a motion to stay and abate the appeal pending the resolution of a motion he filed in the trial court. Because we lack jurisdiction over this appeal, we take no action on Stanley’s motion to stay and abate the appeal. See Elliott v. Deutsche Bank Nat’l Trust Co., No. 02-16-00421- CV, 2017 WL 526315, at *1 n.2 (Tex. App.—Fort Worth Feb. 9, 2017, no pet. h.)

2 /s/ Sue Walker SUE WALKER JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: March 30, 2017

(mem. op.) (“Because we lack jurisdiction over this appeal, we take no action on Appellants’ ‘Motion for Stay of Action on Appeal.’”).