Opinion
No. 07-05-0348-CR
December 6, 2005. DO NOT PUBLISH.
Appeal from the 222nd District Court of Deaf Smith County, No. CR-00H-108, Honorable H. Bryan Poff, Jr., Judge.
Panel B: Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ON MOTION FOR REHEARING
By opinion dated October 27, 2005, this court dismissed appellant Marco Antonio Romero's appeal for failure to timely file notice of appeal, in compliance with Rule 26.2(a) of the Texas Rules of Appellate Procedure. By motion for rehearing, appellant contends that the trial court did not deny his motion for DNA testing until September 7, 2005, when the trial court entered a nunc pro tunc order granting the State's motion to dismiss appellant's motion. The clerk's record confirms this contention. Appellant's notice of appeal was, therefore, timely filed and this court has acquired jurisdiction over the appeal from the denial of the requested DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2005). As to the appeal from the trial court's denial of appellant's motion for in camera inspection of the District Attorney's files for exculpatory matters, our opinion of October 27, 2005 is correct and the motion for rehearing is denied. See Romero v. State, No. 07-05-0348-CR, 2005 Tex.App. LEXIS 8871, at *2 n. 1 (Tex.App-Amarillo October 27, 2005, no pet. h.). Accordingly, appellant's motion for rehearing is granted as to the denial of the motion requesting DNA testing and that portion of the appeal is reinstated. Both clerk's record and reporter's record have been filed. Appellant's brief is due on or before January 5, 2005.