in Re Proper Barry Dwayne Minnfee, Relator

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 47^th 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.