Opinion issued May 14, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-06-00831-CR
____________
JOSE MANUEL SALINAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 702071
MEMORANDUM OPINION
On October 1, 1998, appellant Jose Manuel Salinas, was convicted by a jury of the offense of capital murder committed in the course of an aggravated sexual assault. The State did not seek the death penalty. Therefore, the trial court automatically assessed appellant's punishment at confinement for life. Appellant gave notice of appeal of his conviction, and the appeal was assigned to this Court as appeals number 01-98-01242-CR. We affirmed the trial court's judgment. See Salinas v. State, 2000 WL 567592, (Tex. App.-- Houston [1st Dist.], May 11, 2000) (not designated for publication). The mandate issued on December 12, 2000.
Subsequently, on August 17, 2006, appellant filed a second notice of appeal.
The notice of appeal is styled "Notice of Appeal of DNA re-test results. We note that the record contains no order ruling on a request for post-conviction DNA testing accompanied by an affidavit pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 64.01 (Vernon Supp. 2006). We granted appellant's counsel's motion to abate the appeal for findings of fact and remanded the case to the trial court conducted a hearing to clarify the record. A supplemental record containing the trial court's findings of fact and conclusions of law has been filed with the Clerk of this Court and states in part:
1. On May 11, 2000, the First Court of Appeals affirmed appellant's conviction in cause number 702071. See Salinas v. State, 2000 WL 567592, No.1-98-1242-CR (Tex. App.--Houston [1st Dist}, May 11, 2000)(not published).
2. Subsequent to appellant's conviction, the Harris County District Attorney's Office voluntarily agreed to the retesting of DNA evidence that had been recovered in the case; that retesting has been performed, and the results of the retesting have been provided to appellant's counsel.
3. No reporter's record was made concerning the post-conviction DNA testing.
4. Appellant has never filed a motion for post-conviction DNA testing pursuant to Tex. Code Crim. Proc. Ann. Art. Ch.64.
5. The voluntary post-conviction DNA testing was not ordered pursuant to Tex. Code Crim. Proc. Ann. Art. Ch.64., and this court has made no findings pursuant to Articles 64.03 or 64.04.
6. Because no motion for post-conviction DNA testing was filed pursuant to Tex. Code Crim. Proc. Tex. Code Crim. Proc. Ann. Art. Ch.64., nor was post-conviction DNA testing granted.64.
After the trial court's findings of fact and conclusions of law were filed, he State filed a motion to reinstate the appeal that request that this Court dismiss the appeal for lack of jurisdiction.
In a criminal case, an appeal must be perfected either from a trial court's judgment or an appealable order. See Tex. R. App. P. 25.2 (a)(2). In this case, the State and the appellant entered into a voluntary agreement for DNA testing. The record before this Court does not contain a written order denying a post-conviction request for DNA testing or an oral pronouncement denying a request by appellant for DNA testing pursuant to the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. Art. 64.05 (Vernon 2006). Also see, Ex parte Wright, 969 S.W.2d 792, 794 (Tex. Crim. App. 1991); Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991).
Because the procedures for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure were not used, we find that there is no appealable order before this court. See Waller v. State, 931 S.W.2d 640, 643-44 (Tex. App.--Dallas 1996, no pet.).
Therefore, we grant the State's motion to reinstate the appeal, and we dismiss the appeal for lack of jurisdiction.PER CURIAM
Panel consists of Chief Justice Radack, and Justices Alcala and Hanks.
Do not publish. Tex. R. App. P. 47.2.(b).