Adamsv.State

Court of Appeals of Texas, Fifth District, DallasOct 3, 2005
No. 05-05-01214-CR (Tex. App. Oct. 3, 2005)

No. 05-05-01214-CR

Opinion issued October 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F92-67691-N. Dismissed.

Before Justices WHITTINGTON, FRANCIS, and LANG.


MEMORANDUM OPINION


PER CURIAM.

Darryl Adams filed a motion for post-conviction DNA testing. The trial judge signed the order denying the motion on July 26, 2005; therefore, appellant's notice of appeal was due by August 25, 2005. See Tex.R.App.P. 26.2(a)(1). Appellant's notice of appeal was filed on August 26, 2005, one day late, and no timely extension motion was filed in this Court. See Tex.R.App.P. 26.3. In response to our jurisdictional inquiry, counsel asserts that he intended to file the notice of appeal within thirty days, but was mistaken in the number of days he counted on the calendar. Counsel asserts that appellant should not be penalized for his mistake. He further asserts that for purposes of judicial economy, we should suspend the rules of appellate procedure to obviate the necessity of obtaining an out-of-time appeal via application for post-conviction writ of habeas corpus. The State responds that appellant has not presented any facts that would make his notice of appeal timely. We agree with the State. This Court has no authority to suspend the rules of appellate procedure requiring a timely-filed notice of appeal. Absent a timely notice of appeal, we have no authority to take any action except to dismiss the appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998) (per curiam); Boyd v. State, 971 S.W.2d 603, 605-06 (Tex.App.-Dallas 1998, no pet.). We dismiss the appeal for want of jurisdiction.