1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-242-CR

JAMES DONALD WESTFALL APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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Appellant James Donald Westfall, a pro se inmate, attempts to appeal the

trial court’s denial of his “Motion to Withdraw the Destruction or Removal of

Any and All Evidence Related to Material Facts, Testimony, Documents

Tangible Objects, Photographs, Electronic Media, Computer Files and Exhibits

Presented or Available to be Presented.” The limited record before us shows
2... The State’s notices and the trial court’s orders also reference article

38.39, which does not concern the destruction of evidence. See id. art. 38.39

(Vernon 2005). But we note that article 38.43 was numbered 38.39 until the

legislature renumbered it in 2005. Act of May 24, 2005, 79th Leg., R.S., ch.

728, § 23.001(8), Tex. Gen. Laws 2314.

2

that the State had previously filed two “Notices of Intent to Destroy Evidence”

under article 38.43 of the code of criminal procedure, and the trial court had

entered two “Orders to Destroy Evidence,” finding that the State had complied

with the notice requirements of article 38.43. See TEX. CODE CRIM. PROC. ANN.

art. 38.43 (Vernon Supp. 2008).2

On July 22, 2008, we notified Appellant that we were concerned that we

lack jurisdiction over his appeal because the orders in question do not appear

to be appealable orders. We informed Appellant that we would dismiss the

appeal unless he or any party desiring to continue it filed a response in this

court showing grounds for continuing the appeal. We have not received a

response.

Article 38.43, entitled “Preservation of Evidence Containing Biological

Material,” provides that the State may destroy DNA evidence if it does not

receive an objection within ninety-one days after giving notice to the defendant,

defense counsel, and the convicting court. See id. Article 38.43 does not

provide for any relief by the lower court, nor does it authorize an appeal to a
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court of appeals. See id.; see also Chavez v. State, 132 S.W.3d 509, 510

(Tex. App.—Houston [1st Dist.] 2004, no pet.) (“When the issue is the

preservation of evidence containing biological material, the Code of Criminal

Procedure does not provide for any relief by the lower court, nor authorize an

appeal to the court of appeals.”); Woodall v. State, No. 02-06-00101-CR, 2007

WL 117704, at *2 (Tex. App.—Fort Worth Jan. 18, 2007, pet. ref’d) (mem.

op., not designated for publication) (“[T]he code of criminal procedure does not

authorize an appeal to a court of appeals on the ground that the State

improperly destroyed DNA evidence”). Consequently, we are without

jurisdiction to address whether the State properly destroyed DNA evidence or

whether the trial court properly denied Appellant’s “Motion to Withdraw the

Destruction.” Therefore, we dismiss the appeal for want of jurisdiction. See

TEX. R. APP. P. 42.3(a), 43.2(f).

PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH

TEX. R. APP. P. 47.2(b)

DELIVERED: August 29, 2008