Sherman, Kenneth Wayne v. State

• Court: Court of Appeals of Texas
• Decided: September 30, 2004
• Docket: 14-04-00898-CR
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed September 30, 2004

Dismissed and Memorandum Opinion filed September 30, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00897-CR

NO. 14-04-00898-CR

KENNETH WAYNE SHERMAN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause Nos. 731,519 & 731,520

M E M O R A N D U M   O P I N I O N

After a jury trial, appellant was convicted of aggravated robbery and aggravated sexual assault and sentenced to twenty and thirty years= confinement, respectively.  On July 10, 2002, appellant filed a motion for post-conviction DNA testing of a rape kit and hair samples that had never been tested.  On February 18, 2003, the trial court granted the motion for DNA testing.

The clerk=s record does not reflect that the court-ordered DNA testing was conducted.  See Tex. Code Crim. Proc. Ann. art. 64.03 (DNA test results shall be filed with trial court and served on defendant).  There are no further orders or findings in the record.  See, e.g., Tex. Code Crim. Proc. Ann. art. 64.04 (trial court must hold hearing and make findings after receiving test results).  However, the clerk=s record does contain two pro se letters, dated August 22, 2003 and November 24, 2003, inquiring whether the testing had occurred.  Finally, the clerk=s record contains a pro se notice of appeal, dated August 16, 2004.

We do not have jurisdiction to address these appeals.  Even if an order granting post-conviction DNA testing is an appealable order, see Booker v. State, 2004 WL 334867, at *2 (Tex. App.CDallas 2004, pet.  ) (discussing jurisdiction and interlocutory appeals under the version of the DNA-testing statutes applicable to this case), a timely notice of appeal is essential to vest us with jurisdiction.  Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998); see Tex. R. App. P. 26.2(a)(1).  A defendant=s notice of appeal must be filed within thirty days after the trial court enters an appealable order.  See Tex. R. App. P. 26.2(a)(1).  If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of an appeal.  Under those circumstances it can take no action other than to dismiss the appeal.  Slaton, 981 S.W.2d at 210.

Appellant did not file his notice of appeal within thirty days of the trial court=s order granting DNA testing.  Accordingly, the appeals are ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 30, 2004.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).