PD-0836-24 01/22/2025
1. “Did the court of appeals depart from the usual course of judicial proceedings when it overstepped its jurisdiction and dismissed a Ch. 64 DNA appeal while a TEX. R. APP. PROC. 4.6 motion lay pending in the trial court?”
2. “The court of appeals erred because the area of law surrounding TEX. R. APP. PROC. 4.6 is unsettled as there is no guiding precedent from this Court. This case presents the Court with the opportunity to set down that binding authority.”
Rule 4.6 sets out the procedure for obtaining review of the denial of a Chapter 64 motion for DNA testing when a defendant learns of the ruling 20 days or more after the ruling. Hernandez’s motion for testing was denied in mid-March, 2024, but he claims he did not receive notice until June 11, well outside the 30-day window for appeal. On July 12, Hernandez filed a Rule 4.6 motion with the trial court and a separate notice of appeal. He filed a motion for extension of time with the court of appeals that was filed on July 17. In it, he notified that court of his pending Rule 4.6 motion in the trial court. That same day, the court of appeals requested that he show grounds why his appeal was untimely. Hernandez claims he responded with an explanation of the Rule 4.6 situation the same day, he later discovered, that the court of appeals dismissed his appeal for lack of jurisdiction. That court treated what he claims was his response as a motion for rehearing filed August 5, which it denied.
Hernandez argues that the court of appeals should not have dismissed his appeal without a ruling (and requisite findings) from the trial court as to whether Hernandez was entitled to additional time to appeal.
