TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00761-CR
In re James Edward Nealy
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 48441, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
James Edward Nealy appeals from the district court’s order denying post-conviction
DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.03, .05 (West Supp. 2004-05). Appellant’s
court-appointed attorney filed a brief concluding that this Court is without jurisdiction because notice
of appeal was not timely filed. Counsel further concludes that the appeal is frivolous and without
merit even if this Court has jurisdiction. See Anders v. California, 386 U.S. 738 (1967); see also
Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie
v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim.
App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant also filed a pro
se brief.
The order denying testing was signed and entered on July 26, 2004. On August 19,
appellant filed a pro se motion for new trial. Appellant’s pro se notice of appeal was filed on
November 9. Because an order disposing of a post-conviction DNA motion is not subject to a
motion for new trial, appellant’s motion did not serve to extend the time for perfecting appeal.
Welsh v. State, 108 S.W.3d 921, 923 (Tex. App.—Dallas 2003, no pet.); see Tex. R. App. P. 26.2(a).
Because notice of appeal was not filed within thirty days following the court’s order, this Court is
without jurisdiction. Counsel’s motion to withdraw is granted.
The appeal is dismissed.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Dismissed for Want of Jurisdiction
Filed: April 14, 2005
Do Not Publish
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