
NO. 07-09-0005-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 16, 2009

______________________________


IN RE BARRY DWAYNE MINNFEE, 

                                                                                                  Relator
_________________________________

 Opinion on Original Proceeding for Writ of Mandamus
_________________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
          Pending before the court is the petition from Barry Dwayne Minnfee requesting that
we issue a writ of mandamus against the Honorable Hal Miner, district judge of the 47th
Judicial District.  This is one of many which he has filed to date.  Furthermore, the petition
deals with his purported motion to secure DNA testing and the appointment of legal
counsel to represent him in that matter as well as others.  The petition is not verified; nor
does it contain a prisoner’s statement indicating that the factual allegations contained
therein are accurate.  Nor is a copy of the alleged motion for DNA testing attached to or
included with the petition.  Similarly missing is any explanation as to 1) why he believes
himself entitled to such testing under article 64 of the Texas Code of Criminal Procedure
or 2) why our ordering the trial judge to undertake that which he requests would not be
tantamount to ordering the trial court to engage in frivolous acts and the needless waste
of limited judicial resources.
          Additionally, Minnfee asks us to order the trial court to determine that he is an
indigent entitled to appointed counsel.  Yet, that we cannot do for we cannot tell a trial
judge how to rule on motions pending before them before the trial judge himself rules on
them.  See O'Donniley v. Golden, 860 S.W.2d 267, 269 (Tex. App.–Tyler 1993, orig.
proceeding). 
          Consequently, the petition for writ of mandamus is denied.
 
                                                                           Per Curiam

erline">Id.  An untimely notice of appeal will not invoke the jurisdiction of the court
of appeals.  See White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001).  If an appeal
is not timely perfected, a court of appeals does not have jurisdiction to address the merits
of the appeal, and can take no action other than to dismiss the appeal.  See id.; Slaton v.
State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).  Because appellant did not invoke our
jurisdiction to consider matters relating to her original deferred adjudication proceeding, we
must dismiss the appeal as to any such possible issues.  See White, 61 S.W.3d at 428;
Vidaurri, 49 S.W.3d at 884-85.
	As to those matters unrelated to her original deferred adjudication proceeding, the
record does not support any arguably meritorious error which was harmful to appellant.  
	 The appeal is dismissed for lack of jurisdiction as to any issues relating to
appellant's original deferred adjudication proceeding.  The judgment of the trial court is
affirmed as to any issues unrelated to the original deferred adjudication proceeding. 
Appellate counsel's motion to withdraw is granted. 

							Phil Johnson
							Chief Justice



Do not publish.  
