NO. 07-02-0039-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JULY 8, 2002

______________________________ JERRY MOORE, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 251 ST DISTRIC T COURT O F POTT ER COUNTY; NO. 19633-C; HONORABLE PATR ICK A. PIRTLE, J UDGE

_______________________________ Before BOYD, C.J., and REAVIS an d JOHNSON, JJ. Appellant

Jerry Moore, a penal inmate, is seek ing to obtain DNA testing purs uant to the newly enacted Chapter 64 of the Code of Crimi nal Procedure. Appellant w as convicted of burglary

in 1980. Chapter

64 became effective A pril 5, 2001. By vi rtue of that chapter, a convicted person may fil e a motion in his convicti ng court se eking DN A testing of evidence av

ailable at the time of his conv iction, but w hich has not been te sted. Tex. Code Crim. Proc . Ann. art. 64.01 (Vernon Supp. 2002) . Article64.01 requ ires that a2

motion filed under that article be acco mpanied by an aff idavit settin g out the facts supporting the motion. Id. at art. 64.01(a).
On December

11, 2001, appellant fil ed a document in the trial cour t (his conv icting court) in whic h he requested DNA testing under artic le 64.01. He averred the record was needed so that he could “point out the specific areas in his records that suppo rt his request for DNA testin g.” On December 13, 2001, by writte n order, the tr ial cou rt ove rruled his motion. Appellant now seeks to ap peal that order. Appellant

has filed a pro se brief in which he argues the denial of his request denies him hi s due p rocess ri ghts and effectiv ely precl udes him from obtaini ng the benefits of chapter 64 because 1 ) without a record, he can not providethe specific facts required to show his entitlement to the relie f he requests , and 2) he coul d be subject to liability for submitting an affidavit based on his potential ly err oneous memory of

events that occurred
ove r 20 yea rs e arl ier . The Stat e hasfile d a r eply bri ef.
Our first oblig ation is to determine if we have juri sdiction to he ar this appeal. Article 64.05 provides for an appeal from a finding under art i cles 64.03 (or der for testing ) and 64.04 (finding as to whether the results o f testing were favorable) to a court of

ap peals, unless the convicti on was for a capital offense, in w hich case the ap peal is to theCourt of Criminal Appeals. Tex. Code C rim. Proc. A nn. art. 64.05 (Vernon Supp. 2002); see also Kutzn er v. State , No. 74,135, sl ip op. , 20 02 WL 532423 (Tex.Crim.App. Apr il 10, 2002) (discussi ng appellate r ights under Chapter 64). This statute pr ovides that a denial of

an3

order to have D NA tested or afinding that th e results w ere not favorabl e is appealable. See Tex. R. App. P. 25.2(b)( 2) (on perfecting appeal f rom a judgment “or other appea lable order”). The order

from which ap pellant seeks to appeal is not within the scope of article 64.05 and is, therefor

e, interlocutory. Thus, appellant can only pr

esent this compl aintin the context of an appea l from the denial of a motion for DNA testin g or an appeal from th e finding as to t he results of a D NA test.
Without expressi ng any opi nion on the merits of appellant’s comp lain t, we f ind we have no jurisdiction at this time. Thus, we must, an d do, dismiss this appeal f or lack of jurisdict ion.
John T. Bo yd Chief Justice Publish.