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Click here for the full text of this decision FACTS:Appellant was convicted of capital murder and sentenced to death, and this court affirmed the conviction and sentence on direct appeal. On Oct. 19, 2004, appellant filed a motion for DNA testing. Before the trial court’s decision on the matter, appellant filed two subsidiary motions: a motion for an evidentiary hearing, filed Nov. 22, 2004, and a motion for entry of order, filed March 4, 2005. On April 7, 2005, the trial court entered an order denying the motion for DNA testing. That same day appellant filed a motion for extension of time to respond to the state’s opposition to his DNA request. The next day, he filed a sealed, ex parte application for discovery and an ex parte motion for discovery. On April 11, 2005, the trial court denied the request for extension of time. The sealed application and the motion for discovery were denied April 13 and 19, 2005, respectively. Appellant subsequently filed an application for writ of mandamus, alleging that the trial court had failed to rule on some of his motions. On April 27, 2005, this court issued an order directing the trial court to respond. On May 10, 2005, the trial court issued orders denying appellant’s motion for an evidentiary hearing and his motion for entry of order. That same day the trial court sent this court its mandamus response, enclosing the May 10 orders and the original order denying the motion for DNA testing. On June 9, 2005, appellant filed his notice of appeal. HOLDING:Dismissed. The “appealable order” in this case was the order denying DNA testing, entered April 7, 2005. Thirty days from April 7, 2005, was May 7, 2005, which was a Saturday. Taking into account Texas Rule of Appellate Procedure 4.1′s command that if the last day of the time period “is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday” the last day for filing the notice of appeal was May 9, 2005. The notice of appeal, filed on June 9, 2005, was a month late. Although the trial court later denied other motions that may have been ancillary to the Chapter 64 proceeding, the outcome of the proceeding was decided April 7, and the appellate timetable ran from that date. While some cases suggest that the trial court may have plenary power to modify or rescind its order within 30 days, the trial court did not do so here. The trial court’s orders denying the motions for extension of time, for an evidentiary hearing and for discovery cannot be construed as a modification or recision of the trial court’s order denying testing. Although appellant’s motion for entry of order suggested that he was entitled to DNA testing, and the trial court denied that motion May 10th, that order of denial was not tantamount to a new or modified order denying DNA testing from which an appeal could lie. The trial court simply denied the motion to enter an order. That action was proper because the trial court had already entered an order denying DNA testing. Even if the trial court’s order on the motion for entry of order were construed as a modified order that would restart the appellate timetables, that order came after the trial court’s plenary power, if any, expired. OPINION:Keller, PJ, delivered the court’s opinion.

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