Opinion
No. 05-03-00018-CR
Opinion issued December 15, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F90-34274-M. Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
MEMORANDUM OPINION
In this appeal, we must determine whether the trial judge erred in denying Ocie Lee Moore's motion for DNA testing and failing to require the State to comply with article 64.02(2) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 64.02 (Vernon Supp. 2004). For the reasons that follow, we affirm the trial court's order denying appellant's motion. A jury convicted appellant of the aggravated sexual assault of Jill Hopkins and assessed punishment at ninety-nine years' confinement. Appellant later filed a motion seeking forensic DNA testing of evidence. The State filed a response, alleging the motion should be dismissed or denied because it did not meet the procedural requirements of article 64.01. Alternatively, the State argued appellant failed to establish by a preponderance of the evidence that a reasonable probability exists he would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. The trial judge subsequently denied appellant's motion, stating appellant "is not entitled to relief under Chapter 64." In his first issue, appellant contends the trial judge erred in denying appellant's motion for DNA testing. Under this issue, appellant argues the judge erred because appellant's motion clearly states identity was an issue and DNA testing has become more technologically advanced since his trial. Article 64.01 provides:
A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.Tex. Code Crim. Proc. Ann. art. 64.01; Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). To meet the requirements of article 64.01, an appellant must clearly state, at a minimum, what evidence he wants tested. Dinkins, 84 S.W.3d at 642. In this case, appellant's motion failed to identify what evidence appellant wanted tested. His affidavit states only that "evidence in this case was not previously subjected to DNA testing." Furthermore, although appellant makes a general statement that "DNA testing was unavailable" at the time of his trial or, if available, it was "not technologically capable of providing probative results," he does not provide any facts in support of those claims. Because he has failed to satisfy the requirements of Chapter 64, we conclude the trial judge did not erroneously deny his request for DNA testing. See Dinkins, 84 S.W.3d at 642-43 (holding appellant's motion insufficient because it did not clearly state what evidence appellant wanted tested and because affidavit did not allege facts supporting motion). We overrule appellant's first issue. Under his second issue, appellant claims the trial judge erred in failing to require the State to comply with article 64.02(2) of the code of criminal procedure. We question whether we have jurisdiction over this point. The code of criminal procedure in effect at the time appellant filed his motion did not provide for an appeal of the trial court's procedure under article 64.02. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of April 25, 2003, 78th Leg., R.S., Ch. 13, §§ 5, 8, 2003 Tex. Gen. Laws 16, 16-17 (current version at Tex. Code Crim. Proc. Ann. art. 64.05). Therefore, we conclude we have no statutory jurisdiction over a direct appeal of an article 64.02 complaint. Moreover, even assuming we had jurisdiction, appellant cannot establish reversible error in light of his failure to file a motion that complied with article 64.01. We dismiss appellant's second issue for want of jurisdiction. We affirm the trial court's order denying DNA testing.