Shaun Michael Ray v. Donna Marie Knight ( 2007 )

NO. 07-07-0197-CV IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 22, 2007 ______________________________

SHAUN MICHAEL RAY,

Appellant

V.

DONNA MARIE KNIGHT,

Appellee

_________________________________

FROM THE 47th DISTRICT COURT OF POTTER COUNTY;

NO. 51,789-A; HONORABLE HAL MINER, PRESIDING _______________________________

ORDER DISMISSING APPEAL

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Shaun Michael Ray, has filed with this Court a letter stating that he "prematurely filed my notice of appeal" and that "at this time I have nothing to appeal." We interpret it as a request to dismiss his appeal, and without passing on the merits of the case, we grant the motion pursuant to Texas Rule of Appellate Procedure 42.1(a)(1). The appeal is dismissed. Having dismissed the appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

Brian Quinn

Chief Justice

g to follow a portion of this Court's instructions, appellant filed a notice for an out-of-time appeal requesting permission for DNA testing together with a motion for DNA testing with the District Clerk of Potter County on March 9, 2004. Despite both documents being directed to the attention of the 181st District Court, the district clerk erroneously forwarded them to this Court.

A trial court's finding under article 64.03 or 64.04 of the Texas Code of Criminal Procedure is appealable to a court of appeals except that in a capital case the appeal is to the court of criminal appeals. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Pamph. Supp. 2004). However, where the trial court has not ruled on a request for DNA testing and no appealable finding has been made, an appellate court has no jurisdiction to entertain a motion for DNA testing. Fry v. State, 112 S.W.3d 611, 613 (Tex.App.-Fort Worth 2003, pet. ref'd).

We conclude that by mailing his "Notice of Out of Time Appeal" and "Chapter 64.01 Motion for Forensic D.N.A. Testing" for filing with the District Clerk of Potter County, appellant was attempting to proceed in accordance with our opinion of January 27, 2004. Thus, we direct the Clerk of this Court to forward appellant's documents to the Potter County District Clerk for filing and further action in accordance with applicable rules and principles of law. ⁽¹⁾

Accordingly, this proceeding is dismissed for want of jurisdiction.

Don H. Reavis

Justice

1. The Clerk of this Court shall make copies of Scott's documents to be retained in the appellate record of this cause.