Gaines, Ernest Edward v. State

Order entered October 15, 2015

In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01144-CR

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. F05-56570-S

ORDER This appeal is from the trial court’s order denying appellant’s motion for post-conviction

DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The order was signed on August 12, 2015 and appellant filed his notice of appeal on September 1, 2015. Counsel has been appointed. We note that the record due date has been set based on appellant’s filing of a motion for new trial. Because there is no sentence imposed in a post-conviction DNA case, a motion for new trial is not effective to extend the time to file a notice of appeal and does not impact the record due date. See TEX. R. APP. P. 21.4(a); Welsh v. State, 108 S.W.3d 921, 922–23 (Tex. App.––Dallas 2003, no pet.). Accordingly, we DIRECT the Clerk of this Court to show that the record is due in this appeal sixty days from August 12, 2015. See TEX. R. APP. P. 35.2(a).

We have received correspondence from Patricia Holt, official court reporter of the 282nd Judicial District Court stating that she has determined the record was filed in this case in 2006. Because this is a new appeal from an order denying post-conviction DNA testing, the record filed in 2006 was the record of the trial from the underlying conviction. Accordingly, we DIRECT the Clerk to transfer the record from the appeal in cause no. 05-06-00599-CR, styled Ernest Edward Gaines v. The State of Texas, into the above appeal, and to file a copy of this order among the papers of cause no. 05-06-00599-CR.

We ORDER Ms. Holt to file, within THIRTY DAYS of the date of this order, either the reporter’s record of the hearing on the motion for post-conviction DNA testing or written confirmation that no hearing was conducted or recorded.

We ORDER the Dallas County District Clerk to file, within FIFTEEN DAYS of the date of this order, the clerk’s record containing all of the documents related to appellant’s motion for post-conviction DNA testing.

We DIRECT the Clerk to send copies of this order to Patricia Holt, official court reporter, 282nd Judicial District Court; Felicia Pitre, Dallas County District Clerk; and to counsel for all parties.

/s/ ADA BROWN JUSTICE