



Death Opinion














IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO.74,759


ALBERTO JUAN CANALES, Appellant

v.


THE STATE OF TEXAS




ON APPEAL
FROM DALLAS COUNTY



 Price,  J., delivered the opinion for a unanimous Court.

O P I N I O N



	The appellant was convicted of capital murder, and the State did not seek the death
penalty.  The appellant was sentenced to life imprisonment.  His conviction was affirmed on
direct appeal.  Canales v. State, No. 05-94-01741-CR (Tex. App.--Dallas, delivered Sept.
17, 1996, no pet.) (not designated for publication).  On September 13, 2001, the appellant
filed a motion for post conviction DNA testing under Code of Criminal Procedure Article
64.01.  On March 24, 2003, the trial court denied the appellant's motion.  The appellant
appealed the trial court's denial to this Court.
	We recently held that, when a defendant was convicted of capital murder but not
sentenced to death, appeal from the denial of a motion for DNA testing is properly made to
the court of appeals. (1)  We held that the term capital case, within the context of former
Article 64.05, (2) means a case in which a person was sentenced to death. (3)  Because the
appellant was not sentenced to death in this case, we order that this appeal be transferred to
the Fifth District Court of Appeals.

Delivered:  April 21, 2004.
Do Not Publish.

1. Sisk v. State, No. 74,699, slip op. at 9 (Tex. Crim. App., delivered April 7, 2004).
2. In 2003, the legislature amended former Article 64.05 to specifically provide that appeal from
the denial of a motion for DNA testing is to the Court of Appeals unless the defendant had been
sentenced to death.  Act of May 9, 2003, 78th Leg., R.S., ch. 1011, § 5, 2003 Tex. Gen. Laws 16-17.
3. Sisk, No. 74,699, slip op. at 9.

