Jeffery Lee Manns v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00247-CR
JEFFERY LEE MANNS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1213452D
----------
MEMORANDUM OPINION 1
----------
Appellant Jeffery Lee Manns attempts to appeal from the denial of his
motion for DNA testing. The trial court entered its order denying the motion on
March 13, 2015. Appellant’s notice of appeal was therefore due on April 13,
2015. See Tex. R. App. P. 26.2(a)(1). Appellant mailed his notice of appeal on
or about July 2, 2015, which was received by the trial court on July 15, 2015.
1
See Tex. R. App. P. 47.4.
On July 24, 2015, we notified Appellant of our concern that we lacked
jurisdiction over this appeal. We stated that unless any party desiring to continue
the appeal filed a response showing grounds for continuing the appeal, the
appeal may be dismissed for want of jurisdiction. See Tex. R. App. P. 44.3.
Appellant and his counsel filed responses, but they do not show grounds for
continuing the appeal.
Appellant states that he did not receive notice of the trial court’s order until
June 9, 2015, and that he filed his notice of appeal within thirty days of that
notice. The rules of appellate procedure set out rules that must be followed to
invoke this court’s jurisdiction over an appeal. White v. State, 61 S.W.3d 424,
428–29 (Tex. Crim. App. 2001). If the jurisdiction of a court of appeals is not
properly invoked, the power of the appellate court to act is as absent as if it did
not exist. Id. Appellate jurisdiction is invoked by giving timely and proper notice
of appeal. Id. Although Appellant may not have received timely notice of the trial
court’s order, we cannot suspend the rules of appellate procedure to extend the
time for filing a notice of appeal. See Slaton v. State, 981 S.W.2d 208, 209 (Tex.
Crim. App. 1998). Because Appellant did not timely file his notice of appeal, we
have no jurisdiction over this appeal. See id.
Absent appellate jurisdiction, we can take no action other than to dismiss
the appeal. See id.; see also Bevers v. State, No. 02-04-00464-CR, 2004 WL
2568099, at *1 (Tex. App.—Fort Worth Nov. 12, 2004, no pet.) (mem. op., not
designated for publication) (dismissing untimely appeal and noting that a writ of
2
habeas corpus from the Texas Court of Criminal Appeals is the appropriate
means of seeking an out-of-time appeal). Accordingly, we dismiss this appeal for
want of jurisdiction.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 8, 2015
3