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 OPINION 1
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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, Testim ony, Documents
Tangible Objects, Photographs, Electronic Media, Computer Files and Exhibits
Presented or Available to be Presented.” The limited record before us shows
1
… See T EX. R. A PP. P. 47.4.
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 T EX. C ODE C RIM. P ROC. A NN.
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
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
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
T EX. R. A PP. P. 42.3(a), 43.2(f).
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 29, 2008
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