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Court of Appeals of Texas, Fifth District, DallasJan 24, 2006
No. 05-06-00031-CR (Tex. App. Jan. 24, 2006)

No. 05-06-00031-CR

Opinion Filed January 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F92-02504-JP. Dismissed.



Charles Edward Moore filed a motion seeking post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005). The trial court denied the motion by written order dated August 4, 2005. Therefore, appellant's notice of appeal was due by Tuesday, September 6, 2005. See Tex.R.App.P. 4.1(a), 26.2(a)(1); Welsh v. State, 108 S.W.3d 921, 923 (Tex.App.-Dallas 2003, no pet.). Appellant's September 23, 2005 notice of appeal is untimely, leaving us without jurisdiction over 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.

Appellant's underlying conviction for aggravated sexual assault by a child was affirmed by this Court. See Moore v. State, No. 05-92-01701-CR (Tex.App.-Dallas Mar. 22, 1994, no pet.) (not designated for publication).

The envelope in which the notice of appeal was mailed is post-marked September 19, 2005. Therefore, appellant does not obtain the benefit of the mailbox rule. See Tex.R.App.P. 9.2(b)(1)(c) (to be timely, document must be deposited in mail on or before last day for filing).