Opinion
No. 05-15-01144-CR
11-01-2016
ERNEST EDWARD GAINES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-0556570-S
ORDER
Before the Court is Earnest Gaines's October 31, 2016 Second Motion for an Extension of Time to File Appellant's Brief. Gaines requests an additional thirty days to file his brief on grounds his counsel has requested the trial court to hold a hearing under article 64.04 of the code of criminal procedure and make a finding as to whether, had the DNA results been available during the trial of the offense, it is reasonably probable that Gaines would not have been convicted, see TEX. CODE CRIM. PROC. ANN. art. 64.04 (West Supp. 2016), and because counsel has been actively copying the "full voluminous record" of the trial court proceedings to provide to Gaines.
First, this appeal involves a post-conviction motion for DNA testing under chapter 64 of the code of criminal procedure. Accordingly, the record of the trial that culminated in Gaines's conviction is not relevant to this appeal. Second, the record has been filed in this appeal, and the trial court does not have jurisdiction to hold the hearing requested by Gaines's counsel. See TEX. R. APP. P. 25.2(g). However, Gaines is not precluded from raising on appeal any error by the trial court in failing to hold a hearing pursuant to article 64.04 and resulting harm, if any. See Jones v. State, 161 S.W.3d 685, 689-91 (Tex. App.—Fort Worth 2005, pet. ref'd).
We DENY Gaines's motion, and ORDER Gaines to file his brief by November 15, 2016, the State to file its brief by December 16, 2016, and Gaines to file any reply brief by January 3, 2017. No further extensions will be granted.
/s/ ROBERT M. FILLMORE
JUSTICE