      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Do Not Publish




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