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Criminal Law No. 05-02-01173-CR, 4/28/2003. Click here for the full text of this decision FACTS: James Douglas Waller filed a motion for post-conviction DNA testing pursuant to Texas Code of Criminal Procedure Chapter 64. A trial court granted the motion and found the results of mtDNA testing favorable to Waller. The state appeals asserting, in a single point of error, the trial court erred by finding the mtDNA results favorable to Waller. Waller filed a motion to dismiss this appeal, contending this court does not have jurisdiction. HOLDING: Dismissed for want of jurisdiction. Unless the Legislature has authorized the state to appeal a trial court’s finding in a Chapter 64 DNA challenge, the court does not have jurisdiction over this appeal. A Chapter 64 post-conviction DNA proceeding is a “criminal case” for purposes of appeal. Texas courts have uniformly recognized Texas Code of Criminal Procedure Article 44.01 as the only “general law” authorizing the state to appeal in a “criminal case.” However, article 44.01 currently does not authorize the state to appeal a post-conviction DNA favorable finding under Chapter 64. Acknowledging article 44.01 does not authorize its appeal in this case, the state instead relies on article 64.05 as a basis for bringing this appeal. Article 64.05 states: “An appeal of a finding under Article 64.03 or 64.04 is to a court of appeals, except that if the convicted person was convicted in a capital case, the appeal of the finding is a direct appeal to the court of criminal appeals.” The state contends the clear and unambiguous language of article 64.05 authorizes it to appeal a trial court’s erroneous favorable finding. While the court agrees with the state that the language of article 64.05 is clear and unambiguous, the court does not agree it authorizes the state to appeal a finding of a post-conviction DNA test result. The plain meaning of article 64.05′s literal text deals with whether the court of appeals or the court of criminal appeals has exclusive jurisdiction over an appeal of a finding made pursuant to article 64.03 or 64.04. It does not address at all who may appeal those findings. No absurd results would follow from this construction. Rather, whether the state can appeal remains governed by article 44.01. The state argues that Patrick implicitly recognizes the state’s right to appeal under article 64.05. Patrick expressly held that the state, under the facts of that case, did not have a basis for an appeal. Thus, Patrick was decided on narrower grounds and never reached the broader issue of whether article 64.05 is a separate, independent grant of authority for the state’s appeal. The state also proffers a policy argument for why it should have a right to appeal a trial court’s favorable finding of a post-conviction DNA result for a convicted person under article 64.04. The state contends it would be forced “to expend significant resources protecting the verdict and opposing the writ [of habeas corpus]” without a right to appeal a favorable finding. The state does not explain how it would expend fewer resources by arguing a favorable finding in an appeal to this court versus arguing its opposition to a writ of habeas corpus before the court of criminal appeals. In any event, however, the state’s policy argument must still fail. The court has no authority to authorize the state a right to appeal and thus grant itself jurisdiction over this appeal. Only the Legislature has the authority to authorize this or any appeal. OPINION: Moseley, J.; Moseley, O’Neill and Lagarde, JJ.

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