Ellis Rudy v. Heath Baker and Janis Baker, Individually and as Next Friend of Her Minor Daughter, J.B. ( 2004 )

Ellis Rudy v. Baker, et al.

  IN THE

TENTH COURT OF APPEALS

No. 10-04-00006-CV

     ELLIS RUDY,

                                                                              Appellant

     v.

     HEATH BAKER AND JANIS BAKER,

     INDIVIDUALLY AND AS NEXT FRIEND

     OF HER MINOR DAUGHTER, J.B.,

                                                                              Appellees

From the 12th District Court

Madison County, Texas

Trial Court # 03-10310-012-10

MEMORANDUM OPINION

      Appellant has filed an unopposed motion to dismiss this accelerated appeal from a temporary injunction because the appeal is now moot. See NCAA v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). Accordingly, we grant the motion and dismiss the appeal for want of jurisdiction. See Williams v. Lara, 52 S.W.3d 171, 185 (Tex. 2001).

                                                                   PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 3, 2004

[CV06]

The trial court could have reasonably concluded that, with respect to the door threshold, it is unavailable for testing; that identity was not an issue in this case; and that a reasonable possibility does not exist that Olson would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

      Olson argues that identity was at issue with respect to whose blood is on the shirt he wishes to test. However, it is undisputed that it was Olson who fired the fatal shot. Olson suggests that the identity of whose blood was on his shirt was undetermined and that, consequently, identity was an issue. He also relates that his identity as a murderer or as an innocent, lawful shooter protecting his home at night was an issue. The Texas Court of Criminal Appeals does not seem to follow Olson’s definition of when identity is in issue. See Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002). (where the appellant questioned his counsel’s effectiveness in not adequately asserting that identity was an issue, court noted that since appellant confessed to the murder his identity was not an issue). Inasmuch as identity was not in issue, the trial court did not err in denying Olson’s motion. We also note that an exculpatory DNA test in this case would not prove Olson’s innocence, but would merely “muddy the waters.” Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). We overrule Olson’s single issue.

      The court’s order denying Olson’s motion for forensic DNA testing is affirmed.

                                                                   JOHN G. HILL

                                                                   Senior Justice

Before Chief Justice Davis,

      Justice Vance, and

      Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed July 30, 2003

Do not publish

[CRPM]