Sheiran Pudifin v. Russell Ginn ( 2001 )

NO. 07-01-0319-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 26, 2001

______________________________



SHEIRAN PUDIFIN, APPELLANT

V.

RUSSELL GINN, APPELLEE



_________________________________

FROM THE 246^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 200114524; HONORABLE DON RITTER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Sheiran Pudifin appeals pro se from a protective order entered against her at the request of appellee Russell Ginn, her former spouse. For the reasons we express, we dismiss the appeal.

The clerk's record and reporter's records were filed on August 6, 2001. That being so, appellant's brief was due to be filed no later than September 5, 2001. Tex. R. App. P. 38.6(a). No such brief was ever filed. We notified appellant by letter dated October 25, 2001, that neither a brief nor a motion for extension of time to file a brief had been filed, and unless a response reasonably explaining the failure, together with a showing that appellee had not been significantly injured due to such failure was received by November 6, 2001, the appeal would be dismissed for want of jurisdiction. Tex. R. App. P. 38.8(a)(1). We have received no response to that letter.

Accordingly, the appeal must be and hereby is dismissed.

John T. Boyd

Chief Justice

Do not publish.

g 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.