TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00575-CR



                                 Robert Lee Martin, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-95-955530, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In 2001, appellant Robert Lee Martin was convicted of aggravated sexual assault

and sentenced to life in prison. See Martin v. State, No. 03-02-00435-CR, 2003 WL 21087732

(Tex. App.—Austin May 15, 2003, pet. ref’d) (mem. op., not designated for publication); see also

Martin v. Thaler, No. A-08-CA-732-SS, 2009 WL 3756890 (W.D.Tex. Nov. 6, 2009). In 2009, the

trial court granted Martin’s motion for DNA testing. On April 14, 2010, after receiving test results

from Orchid Cellmark Laboratory, the trial court signed findings of fact and conclusions of law.

The trial court found that Orchid Cellmark determined that the DNA obtained from the victim’s

body and clothing matched Martin’s profile and concluded that the DNA test results were not

exculpatory and that, had the results been available at trial, it was reasonably probable that Martin

would have been convicted. See Tex. Code Crim. Proc. art. 64.04. Following those tests, Martin

unsuccessfully sought further testing, the appointment of an attorney to assist him in conducting a

search of the State’s DNA database, and an order requiring the State to search its DNA database.
                On August 29, 2016, Martin filed a notice of appeal from the trial court’s

“judgment/order signed” on April 14, 2010. In his brief, Martin complains that “recent scientific

developments” undermine the DNA test results and the trial court’s 2010 findings and conclusions.

                As noted by the State, Martin’s notice of appeal was filed years too late.1 See Tex.

R. App. P. 26.2(a); Swearingen v. State, 189 S.W.3d 779, 781 (Tex. Crim. App. 2006). We may

not exercise jurisdiction over this appeal, filed more than six years after the order Martin seeks

to challenge.2 We therefore dismiss for want of jurisdiction.



        1
           On October 17, 2016, the trial court signed a certification of Martin’s right to appeal.
However, the fact that the certification was not filed when the trial court signed its findings and
conclusions does not excuse Martin from filing his notice of appeal within thirty days. See Tex. R.
App. P. 26.2 (deadline for filing notice of appeal runs from date trial court imposes or suspends
sentence in open court or enters appealable order); Fowler v. State, No. 01-12-00300-CR, 2013 WL
653276, at *2 n.1 (Tex. App.—Houston [1st Dist.] Feb. 21, 2013, no pet.) (mem. op., not designated
for publication) (“Contrary to appellant’s argument, the order denying relief was final and appealable
when entered by the trial court, regardless of when the trial court executed a certification of
appellant’s right to appeal.”); see, e.g., Ex parte Payne, No. WR-76539-01, 2011 WL 4970956, at
*2 (Tex. Crim. App. Oct. 19, 2011) (order, not designated for publication) (when record does not
include certification, appellate court should abate to trial court for preparation and filing of
certification). Further, the fact that the certification was signed after Martin filed his notice of appeal
indicates that Martin was not waiting for the certification before appealing.

       Finally, Martin asserts that his appeal is based on “newly discovered evidence,” specifically
a “Notification issued by the Texas Forensic Science Commission” on August 27, 2015. Even if
Martin could take a direct appeal from the trial court’s findings and conclusions more than thirty
days after they were signed based on “newly discovered evidence,” and assuming that the
Commission’s report amounts to “newly discovered evidence,” Martin’s notice of appeal was filed
one year after issuance of the report and would have been untimely.
        2
            Even if we were to reach the merits of Martin’s requests, however, we would lack
jurisdiction to consider his motions related to the search of the State’s DNA database. See Martin
v. State, No. 03-11-00839-CR, 2014 WL 295036, at *2-3 (Tex. App.—Austin Jan. 23, 2014, no pet.)
(mem. op., not designated for publication) (Chapter 64 permits appeal from order denying DNA
testing or related to testing results, not from order on motion ancillary to test proceeding; motion for
counsel to assist in having test results compared to statewide database “does not fall within the
purview of Chapter 64 and is therefore not reviewable on appeal”).

                                                    2
                                           __________________________________________

                                           David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Dismissed for Want of Jurisdiction

Filed: January 5, 2017

Do Not Publish




                                                3