Opinion
No. 03-04-00761-CR
Filed: April 14, 2005. DO NOT PUBLISH.
Appeal from the District Court of Bell County, 27th Judicial District, No. 48441, Honorable Martha J. Trudo, Judge Presiding. Dismissed for Want of Jurisdiction.
Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
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.