Opinion
No. 05-10-00018-CR
Opinion Filed February 1, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 17,022.
Before Justices MOSELEY, FRANCIS, and RICHTER.
MEMORANDUM OPINION
Michael Lynn Sims appeals the trial court's order denying DNA testing and appointment of counsel. Sims sought DNA testing to challenge his conviction for capital murder and resulting life sentence. The trial court signed its order denying testing on October 12, 2009. On November 3, 2009, appellant filed a motion for new trial. On December 22, 2009, appellant filed his notice of appeal. The notice contains a certificate of service representing that appellant served a copy of the notice on the district clerk on December 17, 2009. Because an order denying DNA testing does not impose a sentence, a motion for new trial does not operate to extend the time for filing a notice of appeal. Welsh v. State, 108 S.W.3d 921, 922-23 (Tex. App.-Dallas 2003, no pet.). Thus, appellant's notice of appeal was due within thirty days of the signing of the trial court's October 12, 2009 appealable order. See Tex. R. App. P. 26.2(a)(1); Welsh, 108 S.W.3d at 923. Because appellant did not file a timely notice of appeal on or before November 12, 2009, we do not have jurisdiction to hear this appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (per curiam); Welsh, 108 S.W.3d at 923. We dismiss the appeal for want of jurisdiction.
The State has filed a motion to dismiss the appeal for want of jurisdiction asserting the untimely filing of the notice of appeal. Because, however, the State's motion incorrectly states appellant did not file a motion for new trial, and thus does not apply the controlling case of Welsh v. State, we dismiss the appeal on our own motion and deny as moot the State's motion.