Opinion issued December 31, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00849-CR
____________
JOHN JOSEPH REYES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 93CR0357
MEMORANDUM OPINION
In 1993, a jury found appellant, John Joseph Reyes, guilty of the offense of sexual assault of a child and assessed his punishment at confinement for 16 years and a $10,000 fine. Appellant, in 2001, moved for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure and requested that the convicting court appoint an independent expert to assist him in reviewing the test results. The convicting court granted appellant’s motion for DNA testing, but denied his request for an independent expert. In his sole point of error, appellant contends that the convicting court “erred in failing to appoint an independent expert to assist [his] defense.” We dismiss the appeal.
Facts
On August 22, 2001, the convicting court granted appellant’s motion for DNA testing and ordered that the testing be performed by the Texas Department of Public Safety (DPS) laboratory. The DPS laboratory subsequently tested a vaginal slide and two vaginal swabs that were introduced into evidence at appellant’s trial. It then compared the test results to a sample of DNA from appellant, who is a Hispanic American.
The results from the vaginal slide showed a “1 in 406” likelihood that another Hispanic American would match the same DNA pattern. The results from the first vaginal swab showed a “1 in 336,700” likelihood that another Hispanic American would match the same DNA pattern. Finally, the results from the second vaginal swab showed a “1 in 2,361,000” likelihood that another Hispanic American would match the same DNA pattern.
After completing its testing, the DPS laboratory submitted the test results to the convicting court. On June 15, 2002, the convicting court found that the results of the DNA testing were “not favorable” to appellant. On the same day, appellant filed a motion requesting that the convicting court appoint an independent expert to assist him in reviewing the DNA test results, but the convicting court denied his motion.
Appointment of an Independent Expert
In his sole point of error, appellant argues that the convicting court erred in denying his request for an independent expert because “he was unable to effectively challenge the test results without an expert.”
Article 64.05 of the Texas Code of Criminal Procedure sets out the appeal process under Chapter 64. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004). At the time of appellant’s motion requesting the appointment of an independent expert, article 64.05 read, in pertinent part, that “[a]n appeal of a finding under Article 64.03 or 64.04 is to a court of appeals in the same manner as an appeal of any other criminal matter, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.” Id. (emphasis added). In regard to this language, the Court of Criminal Appeals has recently held that “because the legislature ha[d] not specifically provided for appeals of issues unless they are within 64.03 or 64.04, [a convicting] court’s refusal to appoint an expert is not appealable under Chapter 64.” Wolfe v. State, No. 74,522, slip op. at 7-8 (Tex. Crim. App. Nov. 12, 2003).
Because the convicting court’s denial of appellant’s request for an independent expert was not a finding within the scope of articles 64.03 or 64.04, “appellant’s attack is collateral” for which no appeal is authorized. Id. at 4.
Conclusion
Accordingly, we dismiss the appeal. See id. at 7-8.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Higley.
Do not publish. Tex. R. App. P. 47.2(b).