Date: 09-25-2020

Case Style:

Case Number: 02-19-00393-CR

Judge: Dana Womack

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Joseph W. Spence

Defendant's Attorney:

Description: Dallas, TX, Appellate Attorney, Order Denying DNA Testing

Appellant Thomas Dewayne Ellason, proceeding pro se, attempts to appeal the
trial court’s order denying his request for postconviction DNA testing under
Chapter 64 of the Code of Criminal Procedure.1 See Tex. Code Crim. Proc. Ann.
art. 64.01. We dismiss this appeal for want of jurisdiction.
Ellason filed his notice of appeal in the trial court on October 14, 2019.
Because this court was concerned that we lacked jurisdiction to entertain this appeal,
we sent Ellason a letter stating that it appeared that he had failed to timely file his
notice of appeal. We also informed Ellason that unless he “or any party desiring to
continue the appeal files with the court, on or before Thursday, May 7, 2020, a
response showing grounds for continuing the appeal, the appeal may be dismissed.”
See Tex. R. App. P. 25.2(d), 44.3. We have not received a response.
The order Ellason is attempting to appeal was entered by the trial court on
August 29, 2018. Because Ellason did not file a motion for new trial related to that
order in the court below, his notice of appeal was due September 28, 2018. See Tex.
R. App. P. 26.2(a)(1). But Ellason did not file his notice of appeal until October 14,
2019, more than a year after it could have been considered timely. A notice of appeal
that complies with the requirements of Rule 26 is essential to vest this court with
1
Specifically, in his notice of appeal, Ellason stated that he is “requesting the
grant of appeal of a POST-CONVICTION DNA TESTING,” and he identified the
trial court cause number, which is the same cause number on the trial court’s order
denying postconviction DNA testing.
3
jurisdiction over an appeal. See id. The Texas Court of Criminal Appeals has
expressly held that without a timely filed notice of appeal, we cannot exercise
jurisdiction over an appeal. Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996).

Outcome:
Because Ellason filed his notice of appeal too late, we dismiss this appeal for want of jurisdiction.

Plaintiff's Experts:

Defendant's Experts:

Comments: