


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00067-CR
 
M.B. Jackson,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 278th District Court
Walker County, Texas
Trial Court No. 14,077-C
 

MEMORANDUM  Opinion

 




            M. B. Jackson brings this appeal from
an adverse finding under article 64.04 of the Code of Criminal Procedure.[1] 
The trial court signed the order Jackson challenges on December 12, 2007.  Jackson mailed what this Court has construed to be a notice of appeal[2]
to the Clerk of this Court on February 11, 2008.  We will dismiss the appeal
because it is untimely.
            Article 64.05 provides in pertinent
part that an appeal of an adverse order under Chapter 64 “is to a court of
appeals in the same manner as an appeal of any other criminal matter.”  Tex. Code Crim. Proc. Ann. art. 64.05
(Vernon 2006).  Thus, an appealing party under article 64.05 must file a notice
of appeal within thirty days after entry of the order to properly invoke the
jurisdiction of the court of appeals.[3]  See
Swearingen v. State, 189 S.W.3d 779, 780-81 (Tex. Crim. App. 2006) (citing Tex. R. App. P. 25.2(b), 26.2(a)(1)).
            Here, Jackson filed his notice of
appeal more than 60 days after entry of the order he is challenging.  Therefore, because the notice of
appeal is untimely, we dismiss the appeal.  Id.
                                                                                                PER
CURIAM
 
Before Chief
Justice Gray,
Justice Vance, and
Justice Reyna
Appeal
dismissed
Opinion
delivered and filed March 12, 2008
Do not
publish
[CRPM]




[1]
              Jackson initially filed a
mandamus petition with this Court seeking to compel the trial court to make a
finding as required by article 64.04.  We conditionally granted mandamus relief
by opinion dated December 5, 2007.  See In re Jackson, 238 S.W.3d 603 (Tex. App.—Waco 2007, orig. proceeding).
 


[2]
              The pleading in question is
entitled “Applicant Motion to Rebuttal Order Denying Relief Pursuant to Article
64.04 of the Texas Code of Criminal Procedure.”  This pleading has been
construed as a notice of appeal because it directly challenges the adverse
finding under article 64.04.  See Tex.
Code Crim. Proc. Ann. art. 64.05 (Vernon 2006) (providing for appeal of
adverse findings under Chapter 64); see also Swearingen v. State, 189
S.W.3d 779, 780-81 (Tex. Crim. App. 2006).
 


[3]
              We need not address whether
this deadline may be extended by the filing of a motion for new trial because
no such motion was filed in this case.  See Tex. R. App. P. 26.2(a)(2).



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