IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 8, 2002
______________________________
JERRY MOORE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 19633-C; HONORABLE PATRICK A. PIRTLE, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant Jerry Moore, a penal inmate, is seeking to obtain DNA testing pursuant to the newly enacted Chapter 64 of the Code of Criminal Procedure. Appellant was convicted of burglary in 1980. Chapter 64 became effective April 5, 2001. By virtue of that chapter, a convicted person may file a motion in his convicting court seeking DNA testing of evidence available at the time of his conviction, but which has not been tested. Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2002). Article 64.01 requires that a motion filed under that article be accompanied by an affidavit setting out the facts supporting the motion. Id. at art. 64.01(a).
On December 11, 2001, appellant filed a document in the trial court (his convicting court) in which he requested DNA testing under article 64.01. He averred the record was needed so that he could "point out the specific areas in his records that support his request for DNA testing." On December 13, 2001, by written order, the trial court overruled his motion. Appellant now seeks to appeal that order.
Appellant has filed a pro se brief in which he argues the denial of his request denies him his due process rights and effectively precludes him from obtaining the benefits of chapter 64 because 1) without a record, he cannot provide the specific facts required to show his entitlement to the relief he requests, and 2) he could be subject to liability for submitting an affidavit based on his potentially erroneous memory of events that occurred over 20 years earlier. The State has filed a reply brief.
Our first obligation is to determine if we have jurisdiction to hear this appeal. Article 64.05 provides for an appeal from a finding under articles 64.03 (order for testing) and 64.04 (finding as to whether the results of testing were favorable) to a court of appeals, unless the conviction was for a capital offense, in which case the appeal is to the Court of Criminal Appeals. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2002); see also Kutzner v. State, No. 74,135, slip op., 2002 WL 532423 (Tex.Crim.App. April 10, 2002) (discussing appellate rights under Chapter 64). This statute provides that a denial of an order to have DNA tested or a finding that the results were not favorable is appealable. See Tex. R. App. P. 25.2(b)(2) (on perfecting appeal from a judgment "or other appealable order"). The order from which appellant seeks to appeal is not within the scope of article 64.05 and is, therefore, interlocutory. Thus, appellant can only present this complaint in the context of an appeal from the denial of a motion for DNA testing or an appeal from the finding as to the results of a DNA test.
Without expressing any opinion on the merits of appellant's complaint, we find we have no jurisdiction at this time. Thus, we must, and do, dismiss this appeal for lack of jurisdiction.
John T. Boyd
Chief Justice
Publish.
t of the offense, then, is that appellant operated a truck owned by Moore. Winn v. State, 828 S.W.2d 284, 285 (Tex.App.-Houston [14th Dist.] 1992, no pet.) (citing Abran v. State, 788 S.W.2d 375 (Tex.App.-Houston [1st Dist.] 1988, no pet.)).
There was, in fact, no testimony about the truck's license plate or vehicle identification numbers; however, significant additional evidence was admitted at trial connecting appellant to the vehicle recovered at the crime scene. Hamilton testified she observed appellant driving a white, flatbed truck on the night of the offense and later saw him attempting to extricate the same truck from a mud pit in front of her house. When asked to view three photographs of a white, flatbed truck with a Moore Brothers emblem painted on the door, Hamilton described the vehicle depicted there as "[e]xactly the truck" she had seen on the night of the offense. Moore testified that he identified the truck at the crime scene while it was still entrenched in the mud pit. When asked by the State to view the same photos displayed to Hamilton during her testimony, Moore confirmed the vehicle depicted there was the same vehicle he had seen embedded in the mud on the day of the offense. Finally, Moore explained his company owned the truck. In short, the record is simply replete with evidence that the truck operated by appellant was, indeed, the same truck as that owned by Moore. (2) We, therefore, conclude a rational trier of fact could have found the evidence sufficient to prove beyond a reasonable doubt each of the elements of the offense of unauthorized use of a motor vehicle. Appellant's point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. We note that appellant was charged with unauthorized use of motor vehicle, not theft. Therefore, the State was not required to prove appellant appropriated, or stole, the vehicle with intent to deprive the owner of the property. See Tex. Pen. Code Ann. § 31.03 (Vernon 2003).
2. It is of no moment that other witnesses described the vehicle merely as a large, flatbed, "Ford truck," while Moore described it as "an 'attenuator' with a large crash pad on the back." Contradictions or conflicts between the witnesses' testimony do not destroy the sufficiency of the evidence; rather, they relate to the weight of the evidence, and the credibility the jury assigns to the witnesses. Jimenz v. State, 67 S.W.2d 493, 505 (Tex.App.-Corpus Christi 2002, pet. ref'd).