Randall Wayne McNulty v. State ( 2019 )

NO. 12-19-00063-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RANDALL WAYNE MCNULTY, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of jurisdiction. Randall Wayne McNulty, acting
pro se, filed a notice of appeal to complain of the trial court’s failure to issue findings of fact and
conclusions of law regarding his motion for DNA testing in trial court cause number 05CR-076. 1
The record contains a June 23, 2017, letter from the Houston County District Clerk informing
Appellant that the judge decided not to move forward on his case and there are no new entries on
the docket sheet. The record does not contain an order on the motion for DNA testing.
On February 25, 2019, this Court notified Appellant that the information received failed to
show the jurisdiction of the Court, i.e., there is no new final judgment or appealable order contained
therewith. The notice further advised Appellant that the appeal would be dismissed unless the
information was amended on or before March 27, 2019, to show this Court’s jurisdiction.
Appellant did not respond to this Court’s notice.
“[I]n Texas, appeals by either the State or the defendant in a criminal case are permitted
only when they are specifically authorized by statute.” State ex rel. Lykos v. Fine, 330 S.W.3d
904, 915 (Tex. Crim. App. 2011). Here, there is no order determining Appellant’s motion for
1
In March 2007, this Court affirmed Appellant’s conviction in trial court cause number 05CR-076. See
McNulty v. State, No. 12-06-00019-CR, 2007 WL 805784 (Tex. App.—Tyler Mar. 14, 2007, pet. ref’d) (mem. op.,
not designated for publication).
DNA testing. Absent such an order, this Court has no jurisdiction over Appellant’s appeal. See
Toland v. State, No. 05-16-01471-CR, 2017 WL 1808433, at *1 (Tex. App.—Dallas May 5, 2017,
pet. ref’d) (mem. op., not designated for publication) (no jurisdiction without final order
determining motion for DNA testing). Accordingly, we dismiss Appellant’s appeal for want of
jurisdiction. See TEX. R. APP. P. 43.2(f).
Opinion delivered April 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 10, 2019
NO. 12-19-00063-CR
RANDALL WAYNE MCNULTY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 05CR-076)
THIS CAUSE came on to be heard on the appellate record, and the same being
considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.