                                   NO. 07-09-0340-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  FEBRUARY 8, 2010
                             __________________________

                                KYLE RYAN, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                          ______________________________

              FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                 NO. 51,222-B; HONORABLE DAVID GLEASON, JUDGE
                          ______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


       Appellant Kyle Ryan filed a notice of appeal from an order of the trial court

denying his motion for forensic DNA testing pursuant to Chapter 64 of the Code of

Criminal Procedure. 1    Finding we lack jurisdiction of the attempted appeal, we will

dismiss it.

       Appellant filed his motion for DNA testing on January 8, 2009. The State filed a

response on January 28 asserting the motion was not sworn, no biological evidence

       1
           Tex. Code Crim. Proc. Ann. arts. 64.01 -- 64.05 (Vernon 2006 & Supp. 2009).
was obtained from the victim, and identity was not in issue. 2 By order signed February

3, 2009, the trial court denied appellant’s motion.


       On August 17, appellant filed a document in the trial court entitled “Motion for

Out-of-Time Appeal.” On August 21, the trial court signed an order granting appellant

thirty days to file a notice of appeal. The order contained a finding that appellant was

apparently not served a copy of the February 3 order. Also on August 21, the trial court

certified appellant’s right to appeal. Appellant filed a notice of appeal on September 3.


       On our own motion, we questioned our jurisdiction. We abated the case and

requested a response from appellant and the State. Neither party filed a response.


       An appellate court is obligated to determine, on its own motion, its jurisdiction to

entertain an appeal. State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996),

overruled on other grounds, State v. Medrano, 67 S.W.3d 892, 901-03 (Tex.Crim.App.

2002). In a criminal case, the notice of appeal must be filed within thirty days of the day

the court enters an appealable order or ninety days if a motion for new trial was timely

filed. See Tex. R. App. P. 26.2(a). A court of appeals lacks jurisdiction to consider an


       2
         A clerk’s record was filed and it gives no indication of any proceedings
transcribed by a court reporter. As the State’s response to appellant’s motion indicated,
appellant’s motion was not accompanied by an affidavit and it was not sworn. The
motion did not raise identity as an issue but asserted appellant was “actually innocent”
and desired to “prove his actual innocence.” The State’s response asserted biological
material was not collected and identity was not in issue.

        A motion for forensic DNA testing must be accompanied by an affidavit sworn to
by the convicted person and setting forth relevant facts. Tex. Code Crim. Proc. Ann.
art. 64.01(a) (Vernon Supp. 2009). Further, a convicting court may order DNA testing
only if, inter alia, the evidence still exists in a condition making DNA testing possible and
identity of the perpetrator was or is an issue in the case. Tex. Code Crim. Proc. Ann.
art. 64.03(a)(1)(A)(i) & (a)(1)(B) (Vernon Supp. 2009).
                                             2
untimely filed notice of appeal. See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.

1996) (holding a timely notice of appeal is necessary to invoke the jurisdiction of a court

of appeals).


       Appeals of trial court orders under Chapter 64 are conducted in the same

manner as those of any other criminal matter. Tex. Code Crim. Proc. Ann. art. 64.05

(Vernon 2006). The parties have not cited us to, and we do not find, any authority

authorizing the trial court to grant an out-of-time appeal of its order denying relief under

Chapter 64.     We conclude that regardless of the reason for its filing at that date,

appellant’s notice of appeal filed September 3 from the trial court’s February 3 order

was untimely filed and did not invoke our appellate jurisdiction. The appeal is dismissed

for want of jurisdiction.


       It is so ordered.


                                                        James T. Campbell
                                                            Justice



Do not publish.




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