Canales, Alberto Juan

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 2004
• Docket: AP-74,759
• Status: Published

Opinion

Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO.74,759 ALBERTO JUAN CANALES, Appellant

v.

THE STATE OF TEXAS

ON APPEAL

FROM DALLAS COUNTY

Price, J., delivered the opinion for a unanimous Court.

O P I N I O N

The appellant was convicted of capital murder, and the State did not seek the death penalty. The appellant was sentenced to life imprisonment. His conviction was affirmed on direct appeal. Canales v. State, No. 05-94-01741-CR (Tex. App.--Dallas, delivered Sept. 17, 1996, no pet.) (not designated for publication). On September 13, 2001, the appellant filed a motion for post conviction DNA testing under Code of Criminal Procedure Article 64.01. On March 24, 2003, the trial court denied the appellant's motion. The appellant appealed the trial court's denial to this Court.

We recently held that, when a defendant was convicted of capital murder but not sentenced to death, appeal from the denial of a motion for DNA testing is properly made to the court of appeals. ⁽¹⁾ We held that the term capital case, within the context of former Article 64.05, ⁽²⁾ means a case in which a person was sentenced to death. ⁽³⁾ Because the appellant was not sentenced to death in this case, we order that this appeal be transferred to the Fifth District Court of Appeals.

Delivered: April 21, 2004.

Do Not Publish.

1. Sisk v. State, No. 74,699, slip op. at 9 (Tex. Crim. App., delivered April 7, 2004).

2. In 2003, the legislature amended former Article 64.05 to specifically provide that appeal from the denial of a motion for DNA testing is to the Court of Appeals unless the defendant had been sentenced to death. Act of May 9, 2003, 78th Leg., R.S., ch. 1011, § 5, 2003 Tex. Gen. Laws 16-17.

3.

Sisk, No. 74,699, slip op. at 9.