         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                       NO. AP-76,668



                   BRITTANY MARLOWE HOLBERG, Appellant

                                               v.

                                 THE STATE OF TEXAS

 ON DIRECT APPEAL FROM THE TRIAL COURT’S RULING ON A MOTION
    FILED IN CAUSE NO. W-11,492-C-1 IN THE 251ST DISTRICT COURT
                        RANDALL COUNTY

      Per Curiam.

                                        OPINION

      This is a direct appeal of the trial court’s ruling on a motion filed in the 251 st District

Court of Randall County, Cause No. W-11,492-C-1, styled The State of Texas v. Brittany

Marlowe Holberg.

      Appellant was convicted of capital murder and sentenced to death in March 1998.

This Court affirmed the conviction and sentence on direct appeal. Holberg v. State, 38

S.W.3d 137 (Tex. Crim. App. 2000). On July 19, 2000, appellant filed her initial post-
                                                                                      Holberg – 2

conviction application for writ of habeas corpus in the convicting court where it remains

pending. After the convicting court granted a substitution of counsel in October 2006, new

counsel, well after the time for filing an initial application, filed a document in the trial court

entitled “Reply in Support of Application for Writ of Habeas Corpus” as well as several

exhibits and other papers in support of claims raised in appellant’s initial application. The

trial court declared the document to be a subsequent application and forwarded it to this

Court for review under Article 11.071 § 5.

       This Court determined that the document was not a subsequent application and

returned it to the trial court to be considered, to the extent that the court believed was

appropriate, in conjunction with the claims already before the court in the initial application

filed on July 19, 2000. In the same order, this Court also encouraged the trial court to resolve

the issues raised in the initial application as expeditiously as possible pursuant to the dictates

of Texas Code of Criminal Procedure Article 11.071.           See Ex parte Holberg, No. WR-

68,994-01 (Tex. Crim. App. Jan. 16, 2008)(not designated for publication).

       In the course of resolving the claims raised in the initial Article 11.071 application,

appellant filed a “Motion for Post-Conviction Fingerprint and Blood Testing of the Interior

of a Wallet.” In the motion, appellant explained that test results showing the absence of

blood and fingerprints on the interior of the wallet would tend to prove that she was innocent

of both aggravating factors (robbery and burglary), and thus, prove her innocent of capital

murder. Appellant further explained that the testing requested was not governed by Texas
                                                                                    Holberg – 3

Code of Criminal Procedure Chapter 64 because Chapter 64 only governs a motion for post-

conviction DNA testing. Instead, appellant asserted that her motion was properly filed under

Texas Code of Criminal Procedure Articles 11.07 and 11.071. The trial court found that

appellant’s motion lacked merit and denied it. Appellant filed a notice of appeal to appeal

the order denying testing.

       Appellant’s appeal is not permitted. Appellant does not cite, nor have we found, any

constitutional or statutory provision or any rule that would authorize this appeal from the trial

court’s interlocutory order. See Staley v. State, 233 S.W.3d 337, 338 (Tex. Crim. App.

2007). Appellant’s appeal is dismissed.




Do not publish
Delivered: December 7, 2011
