                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-378-CR


DAVID DURAN                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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     On September 12, 2008, the trial court denied Appellant David Duran’s

“Chapter 64 C.Cr.P. Motion for Discovery.” Duran’s notice of appeal from this

order was due by October 13, 2008, but was not filed until October 14, 2008.

See Tex. R. App. P. 26.2(a)(1).




     1
         … See Tex. R. App. P. 47.4.
      On December 30, 2008, we notified Duran’s court-appointed counsel of

the apparent untimeliness of the appeal; requested that he advise whether the

notice of appeal was properly addressed, stamped, and mailed by United States

Postal Service to the proper trial court clerk on or before October 13, 2008; and

stated that the appeal would be dismissed for want of jurisdiction if the court

determined that the appeal was not timely perfected. See Tex. R. App. P.

9.2(b)(1), (2).2 Duran’s court-appointed counsel responded to our letter, but

the response contains no proof that the notice of appeal was deposited with the

United States Postal Service on or before October 13, 2008. Moreover, Duran

did not file a motion for extension of time stating a reasonable explanation for

the untimely notice of appeal within fifteen days of the last day for filing so as

to provide another basis for appellate jurisdiction. See Tex. R. App. P. 26.3(b);

Olivo v. State, 918 S.W.2d 519, 522–23 (Tex. Crim. App. 1996) (holding that

when notice of appeal is filed within fifteen-day period but no timely motion for

extension of time is filed, appellate court lacks jurisdiction).




      2
        … Under rule of appellate procedure 9.2(b), a notice of appeal is timely
only if it was deposited with the United States Postal Service on or before the
last day for filing and received by the trial court within ten days after the filing
deadline. Tex. R. App. P. 9.2(b)(1). Our December 30, 2008 letter also listed
the items that we would accept as evidence of proof of mailing.

                                         2
     Because Duran’s notice of appeal was untimely, we have no basis for

jurisdiction over the appeal. See Olivo, 918 S.W.2d at 522–23. Accordingly,

we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 43.2(f).

                                          PER CURIAM

PANEL: MEIER, J.; CAYCE, C.J.; and LIVINGSTON, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 19, 2009




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