  Dismissed and Opinion Filed February 5, 2013




                                             n
                                                In The
                                        Qjtiiirt uf    13fat!I
                           iftI! iitrict uf xas at Da1ta
                                          No. 05-12-01562-CR

                      RICHARD WAYNE HENDERSON, Appellant
                                                    V.
                              THE STATE OF TEXAS, Appdllee

                         On Appeal from the 204th Judicial District Court
                                      Dallas County, Texas
                              Trial Court Cause No. F00-55020-Q

                              MEMORANDUM OPINION
                          Before Justices Moseley, Francis, and Lang
                                 Opinion by Justice Moseley
         In 2001, Richard Wayne Henderson was convicted of aggravated sexual
                                                                             assault of a
child. Pursuant to a plea agreement, punishment was assessed at ten
                                                                    years’ imprisonment and a
$5,000 fine. In 2009, appellant filed a motion for post-conviction DNA
                                                                       testing. The trial court
denied the motion by written order dated March 26. 2010. Appellant’s
                                                                     pro          se   notice of appeal is
file-stamped October 26, 2012. The Court        now   has before it the State’s motion to dismiss the

appeal for want ofjurisdiction, citing the untimeliness of appellant’s notice
                                                                              of appeal. We agree
we lack jurisdiction over the appeal.

        “Jurisdiction concerns the power of a court to hear and determine a
                                                                            case.” Olivo v. State,
918 SW.2d 519, 522 (Tex. Crirn. App. 1996). The jurisdiction of
                                                                an appellate court must be
legally invoked, and, if not, the power of the court to act is as absent
                                                                         as if it did not exist. See id.
   at 523.       10 invoke the court’s jurisdiction, an appellant must tile
                                                                            his notice of appeal within the
   time period provided by the rules of appellate procedure See
                                                                                                    it!.:   see also    S’latoii   v. Stair’. 98 1
   S.W.2d 208. 2 10 (Tex. (‘rim. App. App. 1998) (per curiam
                                                             ).
              A notice of appeal from an order denying a motion for postconvictio
                                                                                  n L)NA testing imist
   be filed within thirty days of the dale the order is signed. See
                                                                    Welsh v. State, 108 S.W.3d 921,
  923 (Tex. App.-—DaIIas 2003, no pet,). A pro se prisoner is deeme
                                                                    d to have filed his pleadings
  at the time they are delivered to prison authorities for forwar
                                                                  ding to the court clerk. (Azrnpbell,
  320 S.W.3d 338, 342 (Tex. Crim. App. 2010).

             To he timely, appellant’s notice of appeal was due by Monda
                                                                         y, April 26, 2010. See TF:x.
  R. APP. p. 4.1(a). 26.2(a)(l             .    To obtain the benefit of the mailbox rule, appellant had to deliver

  his notice ot appeal to prison authorities for mailing on or
                                                               before April 26, 2010. See TEx. R.
 App. P. 9.2(b) Campbell, 320 S.W.3d at 342. The first pro
                                                           se document tiled in the trial court
 after March 26, 2010 is a document entitled “Objection-—Motion
                                                                fbr Doctrine of Estoppe1’—
 Actual innocence—Factual Innocence Motion to Vacate,
                                                      Set Aside, or Correct Sentence—-—
 ‘Assistance of Counsel’ Motion for Judgment of Acquittal.”
                                                            This document was file-stamped
 February 8, 2011.               The letter accompanying the document indicates that appella
                                                                                             nt sent the
 original copy of the document to the trial court on or about
                                                              April 25, 2010. The date below
appellant’s signature on the letter is “January 31, 2010.” This
                                                                document does not reference the
trial court’s March 26, 2010 order, let alone seek any relief
                                                              from that order. The first document
in the record that seeks appellate relief is appellant’s October
                                                                 26, 2012 notice of appeal.
           Nothing in the record before the Court shows appellant deliver
                                                                          ed to prison authorities on
or before April 26, 2010 a notice of appeal from the trial court’s
                                                                   March 26, 2010 order denying

it appears this date was probably supposed to be Januar
                                                        y 31, 2011 given that appellant references an action he already
2010 rather than an action he intended to take on April 25.                                                             took on or about April 25.
                                                            2010.
his motion for post-conviction DNA testing. Therefore, we conclu
                                                                 de we lack jurisdiction over
the appeal. We grant the State’s January Il, 2013 motion to dismis
                                                                   s the appeal.
       We dismiss the appeal for want ofjurisdiction     /“fl
                                                       (/1/1’
                                                       V / itwi
                                                   I
Do Not Publish
Ttx. R. An. P.47
121 562F.U05




                                             3
                                    (ønrt ni Apijezt1i
                         .fiftIi t1itrict nf ixaa it hittui
                                         JUDGMENT

Richard Wayne Flenderson, Appellant                 On Appeal from the 204th Judicial District
                                                    Court, Dallas County, Texas
No. 05-12-01562-CR          V.                      Trial Court Cause No. F00-55020-Q.
                                                    Opinion delivered by Justice Moseley,
The State of Texas, Appellee                        Justices Francis and Lang participating.

           Based on the Court’s opinion of this date, we DISMISS the
                                                                     appeal for want of
ju ii sdiction.


Judgment entered this 5th day of February, 2013.




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