                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00283-CR


REGINALD D. DAVIS                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 0851753D

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                        MEMORANDUM OPINION1

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      Appellant Reginald D. Davis attempts to appeal from the trial court’s July

23, 2015 order denying his second motion for DNA testing.

      On July 23, 2015, the trial court signed an order purporting to vacate its

original April 17, 2015 order denying Davis’s motion and then reissuing its denial

through the July 23, 2015 order so that Davis, who did not receive the April 17,


      1
       See Tex. R. App. P. 47.4.
2015 order until the time for filing his notice of appeal had passed, could still

appeal. Davis filed a notice of appeal in this court on August 7, 2015.

      On August 26, 2015, we sent Davis a letter noting that the July 23, 2015

order had been signed 97 days after the trial court had denied the April 17, 2015

order. See Ex parte Matthews, 452 S.W.3d 8, 13 (Tex. App.—San Antonio 2014,

no pet.) (stating that after its plenary power expires, the trial court generally lacks

the authority to take any action in the case). We informed Davis of our concern

that we lacked jurisdiction over the appeal because the notice of appeal from the

April 17, 2015 order was due by May 18, 2015. We stated that unless he or any

party desiring to continue the appeal filed a response showing grounds for

continuing the appeal, we would dismiss it for want of jurisdiction. See Tex. R.

App. P. 43.2(f), 44.3.

      If no party timely files a post-judgment motion, the trial court’s plenary

power expires thirty days after the sentence or appealable order. Tex. R. App. P.

21.4, 22.3; Collins v. State, 240 S.W.3d 925, 927 n.2 (Tex. Crim. App. 2007)

(“We have suggested in past cases that a trial court has plenary power to modify

or rescind its order if a motion for a new trial or a motion in arrest of judgment is

filed within 30 days of sentencing.”); State v. Aguilera, 165 S.W.3d 695, 697–98

(Tex. Crim. App. 2005) (describing duration of trial court’s plenary power in

criminal cases). Because no party in this case timely filed any post-judgment

motions, the trial court’s plenary power expired thirty days after it signed the

earlier order—on May 18, 2015—and it lacked the authority to sign the July 23,


                                          2
2015 order, which became a nullity.2        See Matthews, 452 S.W.3d at 13–14.

Because the notice of appeal for the original, valid order was untimely, we

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




                                                      /s/ Bonnie Sudderth
                                                      BONNIE SUDDERTH
                                                      JUSTICE


PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

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

DELIVERED: October 22, 2015




      2
       Davis argues in his response that rule of appellate procedure 4.2(a)(1)
permitted the trial court’s action, but this rule applies to civil, not criminal, cases.
See Tex. R. App. P. 4.2 (entitled “No Notice of Trial Court’s Judgment in Civil
Case”) (emphasis added).


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