












 
 
 
 
 
 
                                                COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                 FORT
WORTH
 
 
                                        NO.
2-08-378-CR
 
 
DAVID DURAN                                                                    APPELLANT
 
                                                   V.
 
THE STATE OF TEXAS                                                                STATE
 
                                              ------------
 
            FROM THE 211TH
DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                                MEMORANDUM OPINION[1]
 
                                              ------------
On September 12, 2008, the trial court denied
Appellant David Duran=s AChapter
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).




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, 522B23 (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).




Because Duran=s notice
of appeal was untimely, we have no basis for jurisdiction over the appeal.  See Olivo, 918 S.W.2d at 522B23.  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




[1]See Tex. R. App. P. 47.4.


[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.


