THE STATE OF TEXAS v. << (2010)

MEMORANDUM OPINION

Appellant, Luis Enrique Garcia, appeals the convicting court's order denying his motion for post-conviction DNA testing.   The State contends that we do not have jurisdiction over the appeal because appellant's notice of appeal was not timely filed.

We agree.

The clerk's record shows that the order was signed on July 2, 2008.   Because he did not file a motion for new trial, appellant's notice of appeal was due by August 1, 2008.   See Tex.R.App. P. 26.2(a)(1).   The clerk's record indicates that the notice of appeal was filed on August 12, 2008.

The record reflects that appellant, an inmate in the Texas prison system, mailed his pro se notice of appeal on July 19, 2008.   Nonetheless, because it was received more than 10 days after the filing deadline, the notice of appeal did not comply with Rule of Appellate Procedure 9.2, the “mailbox rule.”   See Tex.R.App. P. 9.2(b) (providing that a document is considered timely filed if it is placed in stamped envelope, correctly addressed to proper clerk, deposited in United States mail on or before the last day of filing, and received within ten days after the filing deadline).   A court of appeals may extend the deadline for filing a notice of appeal if the appellant files his notice of appeal and a motion for extension of time within 15 days of the deadline for filing the notice of appeal.   See Tex.R.App. P. 26.3. Although his notice of appeal was filed within that period, appellant did not file a motion for extension of time within the 15-day period.

We conclude that appellant's notice of appeal was not timely filed.   An untimely notice of appeal fails to vest this Court with jurisdiction to decide the appeal.   See Slaton v. State, 981 S.W.2d 208, 209-10 (Tex.Crim.App.1998);  Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996);  Douglas v. State, 987 S.W.2d 605, 605-06 (Tex.App.-Houston [1st Dist.] 1999, no pet.).   We therefore dismiss the appeal for lack of jurisdiction.

PER CURIAM