William Charles Webb v. State ( 2019 )

NUMBER 13-18-00578-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
WILLIAM CHARLES WEBB, Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 54th District Court
of McLennan County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
Appellant William Charles Webb, proceeding pro se, attempted to perfect an
appeal from cause number 2012-675-C2 in the 54th District Court of McLennan County,
Texas. 1 Appellee, the State of Texas, has filed an amended motion to dismiss this
1 This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas
Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (delineating the jurisdiction of appellate courts);
Id. § 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another
at any time that there is “good cause” for the transfer).
appeal on grounds it is untimely. We agree with the State and dismiss the appeal for
want of jurisdiction.
According to the clerk’s record, appellant was convicted of the second-degree
felony offense of arson by judgment signed on June 26, 2013. See TEX. PENAL CODE
ANN. § 28.02. The Fourth Court of Appeals affirmed appellant’s conviction. See Webb
v. State, No. 04-13-00480-CR, 2014 WL 4230144, at *1 (Tex. App.—San Antonio Aug.
27, 2014, pet. ref'd) (mem. op., not designated for publication).
On February 13, 2018, the trial court appointed counsel for appellant for the
purposes of submitting a motion for forensic DNA testing. See generally TEX. CODE
CRIM. PROC. ANN. art. 64.01. On February 28, 2018, appellant filed a motion for forensic
DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure seeking
to test a “cigarette pack” and a “gasoline can.” On April 2, 2018, the trial court signed an
order denying appellant’s motion. On or about August 21, 2018, appellant filed a pro se
motion “reurging” forensic testing and the trial court denied the motion that same day.
On September 10, 2018, appellant filed a pro se notice of appeal stating that he “wish[ed]
to appeal the order denying [his] Motion for Forensic DNA Testing Pursuant to Article
64.01 [of the Texas Penal Code], which was ruled on August 21, 2018.”
Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when
the notice of appeal is filed within thirty days after the day sentence is imposed or
suspended in open court, or after the day the trial court enters an appealable order. TEX.
R. APP. P. 26.2(a)(1); see Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App. 1993);
Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). The
time to file the notice of appeal may be enlarged if, within fifteen days after the deadline
for filing the notice, the party files the notice of appeal and a motion complying with Rule
2
10.5(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 26.3; id. R.
10.5(b). A timely filed motion for new trial can only extend the deadline for filing an
appeal from the imposition or suspension of a sentence; it cannot extend the deadline for
filing an appeal from an otherwise appealable order. See Ex parte Delgado, 214 S.W.3d
56, 58 (Tex. App.—El Paso 2006, pet. ref'd); Welsh v. State, 108 S.W.3d 921, 922 (Tex.
App.—Dallas 2003, no pet.). Absent a timely filed notice of appeal, a court of appeals
does not obtain jurisdiction to address the merits of the appeal in a criminal case and can
take no action other than to dismiss the appeal for want of jurisdiction. Slaton v. State,
981 S.W.2d 208, 210 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex.
Crim. App. 1996); Pickens v. State, 105 S.W.3d 746, 748 (Tex. App.—Austin 2003, no
pet.).2
Appellant’s notice of appeal was due on May 2, 2018 but was not filed until
September 10, 2018. Appellant’s notice of appeal was not timely. See TEX. R. APP. P.
26.2(a)(1); see also Soliz v. State, No. 04-19-00113-CR, 2019 WL 1779842, at *1 (Tex.
App.—San Antonio Apr. 24, 2019, no pet. h.) (mem. op. per curiam, not designated for
publication); Paredes v. State, No. 14-19-00015-CR, 2019 WL 470447, at *1 (Tex. App.—
Houston [14th Dist.] Feb. 7, 2019, no pet.) (mem. op. per curiam, not designated for
publication).
The Court, having examined and fully considered the record and the State’s
amended motion to dismiss, is of the opinion that we lack jurisdiction over this appeal.
2 The Texas Rules of Appellate Procedure provide that defendants may obtain additional time to
file their notices of appeal when they have not received notice of the trial court’s order on a motion for
forensic DNA testing; however, this rule was not effective until November 1, 2018, and further, the record
does not support an extension of time on this basis. See TEX. R. APP. P. 4.6.
3
Accordingly, we grant the State’s amended motion to dismiss the appeal and we dismiss
the appeal for want of jurisdiction.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
20th day of June, 2019.
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