Opinion
05-23-01244-CR
04-11-2024
EBBY DEWAYNE WADE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 073026
ORDER
ROBERT D. BURNS, III CHIEF JUSTICE
Before the Court is appellant's first motion for extension of time to file the brief and his motion to abate the appeal, both filed April 9, 2024.
In the motion for extension of time to file the brief, appellant requests an extension of ninety days. We GRANT the motion in part, we extend the time to file the brief by thirty days, and we ORDER appellant's brief due MAY 17, 2024; in all other respects, the motion for extension of time to file the brief is DENIED.
In the motion to abate the appeal, appellant seeks abatement of the appeal due to inaccuracies in the clerk's record and reporter's record and because he filed a motion for DNA testing that has not been ruled on.
Concerning the clerk's record, on March 18, 2024, this Court ruled on appellant's motion regarding inaccuracies in the clerk's record. We granted the motion to the extent of directing the Clerk to send appellant three pages from the clerk's record that appellant asserted were missing from the copy of the clerk's record he received, and we otherwise denied the motion. We mailed a copy of the March 18, 2024 order to appellant with the three pages of the clerk's record, but the envelope was returned to this Court on April 1, 2024, as undeliverable as addressed. The envelope was correctly addressed. Another copy of the March 18, 2024 order and the three pages from the clerk's record were mailed to appellant on April 2, 2024. Therefore, appellant's motion to abate the appeal due to errors in the clerk's record is DENIED.
Concerning the reporter's record, appellant's motion to abate the appeal states, "The Reporter's Record contains inaccurate statements, parties and events; missing proceedings, parties and evidence/exhibits; has erroneously provided statements, testimony, evidence not admitted, not stated and/or events and exhibits not held/offered." The motion does not identify any specific inaccuracies in the record; therefore, the motion to abate due to errors in the reporter's record is DENIED.
Concerning appellant's request for abatement during the pendency of his motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure, DNA testing is a separate and independent procedure from an appeal of a conviction. Therefore, the motion to abate the appeal due to the DNA testing procedure is DENIED.
In all other respects, the motion to abate the appeal is DENIED.
We DIRECT the Clerk to send copies of this order and the order of March 18, 2024, by first class mail to Ebby Dewayne Wade, TDCJ # 02472911, Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351.