TORRES v. STATE (2019)

ORDER

On September 10, 2018, Appellant filed a motion for DNA testing under Article 64.05 of the Texas Code of Criminal procedure. The trial court denied the motion the same day. Appellant claims that he did not receive notice of the trial court's order. In October 2018, he wrote to the trial court to inquire about the motion. In November 2018, the trial court informed Appellant that it had already denied the motion. Appellant filed his notice of appeal on November 26, 2018. The Court of Appeals determined that Appellant's notice of appeal was untimely under Tex. R. App. P. 26.2(a) and dismissed the appeal.

Appellant filed this petition for discretionary review arguing that he did not receive timely notice of the trial court's order denying his motion. He contends that his appeal should be considered because he filed a notice of appeal as soon as he received notice of the trial court's order. Appellant's notice of appeal was untimely. Tex. R. App. P. 26.2(a)(1). Accordingly, we refuse his petition for discretionary review.

Appellant may seek further recourse for his claim by refiling his motion for DNA testing with the trial court. Ex parte Suhre, 185 S.W.3d 898 (Tex. Crim. App. 2006). If Appellant does not receive timely notice of the trial court's ruling on his re-filed motion, he may now seek an extension of time to file his notice of appeal so long as he is made aware of the trial court's order within 120 days of the trial court signing it. Tex. R. App. P. 4.6.

It is so ordered this 12th day of June, 2019.

Per curiam.

Keller, P.J., and Keasler, J., concurred.