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affirming trial court's orders denying appellant's motions for postconviction forensic DNA testing and for appointment of counsel after examination of record did not reveal any unassigned fundamental error
Summary of this case from Solomon v. StateOpinion
NO. 02-15-00368-CR
05-26-2016
SADIQ OLASUNKA ADELEKE APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 0542993D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Pro se Appellant Sadiq Olasunka Adeleke appeals the trial court's orders denying his motions for post-conviction forensic DNA testing and for appointment of counsel. See Tex. Code Crim. Proc. Ann. art. 64.01(a-1), (c) (West Supp. 2015). We will affirm.
Adeleke filed a motion for post-conviction forensic DNA testing on August 28, 2014. On July 23, 2015, Adeleke filed a motion for appointment of counsel to assist him with the request for forensic DNA testing. The State later filed responses to both motions and proposed findings of fact and conclusions of law, which the trial court adopted in its September 22, 2015 orders denying both of Adeleke's motions. The trial court denied Adeleke's motion for forensic DNA testing "because no evidence containing biological material exists in a condition making DNA testing possible." See id. art. 64.03(a)(1)(A)(i) (West Supp. 2015). The trial court denied Adeleke's motion for appointment of counsel "because there are no reasonable grounds for the motion to be filed as no evidence exists to test." See id. art. 64.01(c).
On December 23, 2015, we notified Adeleke that his brief was due by January 22, 2016. On February 11, 2016, we notified Adeleke that his brief had not been timely filed and that unless he filed a motion reasonably explaining the failure to file a brief and the need for an extension, the court could consider and decide the appeal without a brief. See Tex. R. App. P. 38.8(b)(2). In an order dated March 15, 2016, we stated that Adeleke had not filed a brief, and we ordered that the case be submitted without briefs.See Tex. R. App. P. 38.8(b)(4).
We did not abate this appeal pursuant to rule 38.8(b). See Tex. R. App. P. 38.8(b). As we explain below, Adeleke has no constitutional right to counsel in a chapter 64 proceeding. Therefore, abating the appeal to ensure compliance with a right that Adeleke does not possess would be a useless act.
Rule of appellate procedure 38.8(b)(4) provides that an appellate court in a criminal case may consider an appeal without briefs, as justice may require. Id. "[A]n appellate court's inherent power to dismiss a case is reserved for those situations in which a party has engaged in serious misconduct such as bad-faith abuse of the judicial process." Burton v. State, 267 S.W.3d 101, 103 (Tex. App.—Corpus Christi 2008, no pet.) (relying on Tex. Code Crim. Proc. Ann. art. 44.33(b) (West 2006)). Appellant has not filed a brief, but that failure in itself does not constitute serious misconduct or bad-faith abuse of the judicial process. See Baker v. State, No. 02-14-00157-CR, 2015 WL 392640, at *2 (Tex. App.—Fort Worth Jan. 29, 2015, no pet.) (mem. op. on reh'g, not designated for publication). We therefore submitted this cause without the benefit of briefs and, in the interest of justice, reviewed the record.
When an appellant fails to file a brief, appellate review is limited to fundamental errors. Id. The court of criminal appeals has enumerated the following fundamental errors: (1) denial of the right to counsel, (2) denial of the right to a jury trial, (3) denial of ten days' preparation before trial for appointed counsel, (4) absence of jurisdiction over the defendant, (5) absence of subject-matter jurisdiction, (6) prosecution under a penal statute that does not comply with the Separation of Powers section of the state constitution, (7) jury charge errors resulting in egregious harm, (8) holding trials at a location other than the county seat, (9) prosecution under an ex post facto law, and (10) comments by a trial judge which taint the presumption of innocence. Id.; see Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002). Our examination of the record does not reveal any unassigned fundamental error. Accordingly, we affirm the trial court's orders denying Adeleke's motions for post-conviction forensic DNA testing and for appointment of counsel.
Regarding the first potential fundamental error—denial of the right to counsel—although there is a statutory right to counsel, there is no federal or state constitutional right to counsel in a chapter 64 proceeding. See Winters v. Presiding Judge of Criminal Dist. Court No. Three of Tarrant Cty., 118 S.W.3d 773, 774 (Tex. Crim. App. 2003); Ard v. State, 191 S.W.3d 342, 344 (Tex. App.—Waco 2006, pet. ref'd). We therefore fail to see how fundamental error can flow from the denial of Adeleke's request for counsel in this context. See Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1264-65 (1991) (explaining that fundamental error occurs when certain constitutional rights are violated, such as the right to counsel); Arguellez v. State, No. 13-09-00136-CR, 2009 WL 3210934, at *3 (Tex. App.—Corpus Christi Oct. 8, 2009, no pet.) (mem. op., not designated for publication) (reasoning that fundamental errors are violations of rights that are "waivable only" or denials of absolute systemic requirements). --------
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016