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Albert Nicholas Albert Nicholas v. the State of Texas

April 25, 2013

ALBERT NICHOLAS ALBERT NICHOLAS, APPELLANTAPPELLANT
v.
THE STATE OF TEXAS, APPELLEE



From the 198th Judicial District Court, Kerr County, Texas Trial Court No. B93-6 and B93-7 Honorable Rex Emerson, Judge Presiding

The opinion of the court was delivered by: Catherine Stone, Chief Justice

ORDER

Appellant has filed a motion for extension of time asserting that: (1) he was not in receipt of the appellate record in sufficient time to prepare his brief by the original deadline; and (2) he has requested an additional supplement to the record. With regard to appellant's request for an additional supplement, this court has confirmed with the trial court clerk that appellant is in receipt of all volumes of the clerk's record filed in this appeal. As noted in a prior order, in this appeal, this court can only consider the record that was before the trial court in ruling on appellant's motion for DNA testing. See Leza v. State, 351 S.W.3d 344, 362 n.78 (Tex. Crim. App. 2011) ("Perhaps the most basic characteristic of the appellate record is that it is limited to matters before the trial court."); Roughley v. State, No. 05-03-00049-CR, 2003 WL 22450442, at *1 (Tex. App.-Dallas Oct. 29, 2003, pet. ref'd) (holding trial court is not required "to review a convicted person's entire trial record in ruling on a motion for post-conviction DNA testing"). Therefore, the record is complete. The portion of appellant's motion requesting leave to file a supplemental clerk's record is DENIED. The portion of appellant's motion requesting additional time to file his brief is GRANTED. Appellant is reminded that his brief must comply with the briefing requirements contained in Rule 38.1 of the Texas Rules of Appellate Procedure. Appellant's brief must be filed in this court no later than May 28, 2013.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 25th day of April, 2013.

Keith E. Hottle Clerk of Court

20130425

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