
NO. 07-02-0039-CR

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).   
