THE STATE OF TEXAS v. MARCO ANTONIO RODRIGUEZ A/K/A DAVID MACIEL GARCIA A/K/A ERIC LINARES VILLA--Appeal from 138th District Court of Cameron County

NUMBER 13-05-262-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

MARCO ANTONIO RODRIGUEZ,

A/K/A DAVID MACIEL GARCIA,

A/K/A ERIC LINARES VILLA Appellee.

On appeal from the 138th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

Appellee, Marco Antonio Rodriguez, petitioned the trial court for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005). The trial court found that appellee met the requirements of chapter 64 and granted the motion for testing. On appeal, the State asserts that the trial court erred in finding that appellee had satisfied the requirements of chapter 64 and by granting post-conviction DNA testing. We dismiss for want of jurisdiction. The Texas Constitution states that the AState is entitled to appeal in criminal cases, as authorized by general law.@ Tex. Const. art. V, _ 26. Texas courts have uniformly recognized article 44.01 of the Texas Code of Criminal Procedure as the only Ageneral law@ authorizing the State to appeal in a Acriminal case.@ State v. Waller, 104 S.W.3d 307, 308 (Tex. App.BDallas 2003, pet. ref=d); see, e.g., State v. Wilcox, 993 S.W.2d 848, 850 (Tex. App.BAustin 1999, pet. granted); State v. Mohsene, 936 S.W.2d 732, 734 (Tex. App.BDallas 1996, no pet.).

The State bases its authority to appeal on article 44.01(a)(6). See Tex. Code Crim. Proc. Ann. art. 44.01(a)(6) (Vernon Supp. 2005). However, this specific provision was added by the legislature in 2003. See Act of April 25, 2003, 78th Leg., R.S., ch. 13, _ 7, 2003 Tex. Gen. Laws 13 (current version at Tex. Code Crim. Proc. Ann. art. 44.01(a)(6) (Vernon Supp. 2005). The Act provides that such an appeal is only applicable to cases where the defendant filed the motion on or after the effective date of September 1, 2003, and that motions filed prior to that date are controlled by law in effect at that time. See Act of April 25, 2003, 78th Leg., R.S., ch. 13, _ 8, 2003 Tex. Gen. Laws 13.

Thus, we apply the law in effect when appellee filed his motion for post-conviction DNA testing on November 27, 2001. Prior to the addition of article 44.01(a)(6), the State was not entitled to appeal an order issued under chapter 64. See State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002); Waller, 104 S.W.3d at 308. Unless the legislature has authorized the State to appeal a trial court=s granting of a chapter 64 order, we do not have jurisdiction over the appeal. See State v. Ramirez, 62 S.W.3d 356, 358 (Tex. App.BCorpus Christi 2001, no pet.); Waller, 104 S.W.3d at 308. Because appellee filed his motion prior to the effective date of article 44.01(a)(6), the State was not, at the time, authorized to appeal the order in question.

Accordingly, we dismiss the appeal for want of jurisdiction.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 6th day of July, 2006.