Summary
dismissing appeal for want of jurisdiction when order denying postconviction motion for DNA testing did not exist
Summary of this case from Calton v. StateOpinion
No. 2-02-381-CR.
Delivered: August 29, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 213th District Court of Tarrant County.
Panel F: DAUPHINOT, J; CAYCE, C.J.; and DAY, J.
Robert Ford, Fort Worth, for Appellant. Tim Curry, Criminal District Attorney; Charles M. Mallin, Steven W. Conder, and Kelly Loftus, Assistant Criminal District Attorneys of Fort Worth, for the State.
MEMORANDUM OPINION
See Tex.R.App.P. 47.4.
Pursuant to a plea bargain, Appellant Blair Alan Blanchette pled guilty to sexual assault of a child under seventeen years of age and was sentenced to eight years' confinement, probated for eight years. The trial court subsequently revoked Appellant's probation and imposed the original sentence. Later, the trial court granted Appellant's post-conviction request for appointed counsel to represent him on the issue of DNA testing. Several months after the trial court appointed counsel, the State filed an untimely reply to Appellant's pro se request for appointed counsel. The trial court then signed an order denying appointed counsel because it found that identity was not an issue in the case. Thus, the trial court appears to have taken away Appellant's counsel without his consent. The trial court had no power to issue this order. In his sole point on appeal, however, the order that Appellant complains of is an order denying his post-conviction motion for forensic DNA testing. There is no such order. No such motion was filed or ruled upon. Consequently, Appellant does not appeal from a final appealable order. Based on the unique facts before us, we dismiss this case for want of jurisdiction.
See Stearnes v. Clinton, 780 S.W.2d 216, 222-23 (Tex.Crim.App. 1989) (orig. proceeding) (holding that power of trial court to appoint counsel to represent indigent defendants does not carry with it the concomitant power to remove counsel at court's discretion).
See McIntosh v. State, 110 S.W.3d 51, 52 (Tex.App.-Waco 2002, no pet.).