### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00170
- CR

In re Jeffery Allen Whitfield

FROM THE 264TH DISTRICT COURT OF BELL COUNTY NO. 63048 , THE HONORABLE JOHN GAUNTT , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appella nt J efferey Allen Whitf ield , appearing pro se, seeks to appeal the
trial court ’ s denial of his post

- conviction motion for DNA testing

. See Tex. Code Crim. Proc.
arts. 64.01

- .05. This Court ’s appellate juris diction in a criminal case is in v oked by a timel y fi led notice of appeal. See Castillo v. St ate , 369 S.W.3d 196, 198 (Tex. Crim. App. 20 12) ( “ Timely filing of a written notice of a ppeal is a jurisdictional prerequi site

. ” ). Under t he Texas Rules of Appellate Proc edure , a criminal defenda nt must fi l e hi s no tice of appeal within thirty days after the day s entence is imposed or suspended in op en court , or after the day the trial court enters an appealable order

— or within ninety days, if he t imely files a motion for new tr ial. Tex. R. App.
P . 26.2 (a)(1 )

- (2 ) ; s ee Tex. C ode Crim. Proc. art. 64 .05 ( “ An a ppeal under [Chapter 64] is to a court of appeals in the same manner as an appeal of any other criminal matter . . . . ” ).

In this case , th e trial court signe d the appea lable o rder denyin g Whitf ield ’ s motion
for D NA te s ting on February 2, 2021. B ecause no motion for new trial was fi led, t he deadline for Whitfield to file his notice of appeal was March 4 , 2021. Whit f ield filed his notice of appeal
on A pril 5, 2021. Because Whi tfield did not timely file his noti ce o f a p peal, we lack j urisdiction2

to address the mer its of this appeal. 1 See Davis v State , 502 S.W.3d 803, 803 (Tex. Crim. App.
201 6 ) (per curi am order) ( explaining appellant ’ s recourse for untimely notice of appeal fro m denial of motion for DNA testing is to file another motion for DNA testi ng ). Accordingly, we dismiss this appeal for want of jurisdiction

.

________________ __________________________ Cha ri L. Kelly , Justice
Before Chief Justice By rne, Justices Triana and Kelly
Dismissed for Wan t of Ju risdiction
Filed: November 10, 2021
Do Not P ublish

1 R ule 4.6 of the Rules of Appellate Procedure , which became effective November 1, 2018, provides a proced ural mechanism for extending the appellate deadline for f iling a notice o f appeal from an adverse ruling on a m otion for post

- conviction DNA testing when neith er the adversely affected defendant nor his attorney received notice o r acquired actual knowledge of the appealable order w ithin twenty day s of its sig ning. Tex. R. App. P. 4.6

. To invoke this mechanism , the defendant mu st file , within 120 days after the signing of the appe alable order , a written, s worn motion for additional time to file a notice of appeal, stating (1) his desi re to appeal, and ( 2) the e arliest date he or his attorney receive d n otice or a c quired actual kn owle dge t hat the trial judge signed the order . Th e term “ swo rn ” in Rule 4.6 includes the use of an unsworn declaration made under penalty of per jury

. I d. (comment to 2018 change to add Rule 4.6 ; citing Tex. Civ. Prac. & Re m. Co de § 132. 0 0 1 )

. I n thi s case, Whi tfield ’ s pro se n otice of appeal s t ates that he wishes to appeal the trial court ’ s denial of his m otion for DN A testing and that due to delays in the pr ison mail room, he did not receive notice that the tri al court had sig n ed an ord e r until Mar ch 23, 2 02 1 , after the deadline to fil e his notice of appeal

. In addition, the notice ’ s certificate of serv ice states that “ all is true and correct

. ” Whitfield ’ s notice of appeal does not , however, include the phrase “ under penalty o f perjury

. ” S ee Bah m v. Sta te , 219 S.W.3d 391, 394 (Tex. 2007) ( exp laining that “ t he only phrase that the Legislature actually mandates should be included in such declarations [under Section 132.001 ] is ‘ u nder penalty of per jury ’ ” ). As such , to the exten t the tria l court could have otherwise const rued Whi t field ’ s notice of appeal as a motion for additional time, it is not

“ swo rn, ” as required by Rule 4.6

. See Tex. Civ. Prac. & R em. Code § 1 32 .001 (c), (e) ( form for unswor n declarati on by inmate)

.