NO. 07-02-0039-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 8, 2002

______________________________

JERRY MOORE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 19633-C; HONORABLE PATRICK A. PIRTLE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Jerry Moore, a penal inmate, is seeking to obtain DNA testing pursuant

to the newly enacted Chapter 64 of the Code of Criminal Procedure. Appellant was

convicted of burglary in 1980. Chapter 64 became effective April 5, 2001. By virtue of that

chapter, a convicted person may file a motion in his convicting court seeking DNA testing

of evidence available at the time of his conviction, but which has not been tested. Tex.

Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2002). Article 64.01 requires that a
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motion filed under that article be accompanied by an affidavit setting out the facts

supporting the motion. Id. at art. 64.01(a).

On December 11, 2001, appellant filed a document in the trial court (his convicting

court) in which he requested DNA testing under article 64.01. He averred the record was

needed so that he could “point out the specific areas in his records that support his request

for DNA testing.” On December 13, 2001, by written order, the trial court overruled his

motion. Appellant now seeks to appeal that order.

Appellant has filed a pro se brief in which he argues the denial of his request denies

him his due process rights and effectively precludes him from obtaining the benefits of

chapter 64 because 1) without a record, he cannot provide the specific facts required to

show his entitlement to the relief he requests, and 2) he could be subject to liability for

submitting an affidavit based on his potentially erroneous memory of events that occurred

over 20 years earlier. The State has filed a reply brief.

Our first obligation is to determine if we have jurisdiction to hear this appeal. Article

64.05 provides for an appeal from a finding under articles 64.03 (order for testing) and

64.04 (finding as to whether the results of testing were favorable) to a court of appeals,

unless the conviction was for a capital offense, in which case the appeal is to the Court of

Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2002); see also

Kutzner v. State, No. 74,135, slip op., 2002 WL 532423 (Tex.Crim.App. April 10, 2002)

(discussing appellate rights under Chapter 64). This statute provides that a denial of an
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order to have DNA tested or a finding that the results were not favorable is appealable.

See Tex. R. App. P. 25.2(b)(2) (on perfecting appeal from a judgment “or other appealable

order”). The order from which appellant seeks to appeal is not within the scope of article

64.05 and is, therefore, interlocutory. Thus, appellant can only present this complaint in

the context of an appeal from the denial of a motion for DNA testing or an appeal from the

finding as to the results of a DNA test.

Without expressing any opinion on the merits of appellant’s complaint, we find we

have no jurisdiction at this time. Thus, we must, and do, dismiss this appeal for lack of

jurisdiction.

John T. Boyd

 Chief Justice

Publish.