James Donald Westfall v. State ( 2008 )


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  •                           COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-08-242-CR
    JAMES DONALD WESTFALL                                           APPELLANT
    V.
    THE STATE OF TEXAS                                                    STATE
    ------------
    FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    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
    3
    

Document Info

Docket Number: 02-08-00242-CR

Filed Date: 8/29/2008

Precedential Status: Precedential

Modified Date: 9/4/2015