Opinion
No. 04-15-00761-CR
06-28-2017
Christopher Shaun ORTIZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR11043
Honorable Kevin M. O'Connell, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
On September 30, 2011, Christopher Shaun Ortiz was convicted of aggravated sexual assault-elderly/disabled and sentenced to fifteen years' imprisonment. See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2015). On June 25, 2015, Ortiz filed a pro se motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure seeking new DNA testing and appointment of counsel in connection with the DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a-1), (b)(2), (c) (West Supp. 2016). Ortiz attached an unsworn affidavit in support of his motion. On October 29, 2015, the trial court signed an order denying Ortiz's motion because it did not contain a sworn affidavit stating facts in support of the motion, as required by article 64.01(a-1), and because there were not reasonable grounds for filing the motion; the court also denied appointment of counsel. See id. art. 64.01(a-1) (requiring the motion to contain a sworn affidavit containing statements of fact in support of the motion); see also id. art. 64.01(c). Ortiz filed a notice of appeal. See id. art. 64.05 (West 2006).
The clerk's record was filed in this court on December 4, 2015. There was no reporter's record. Ortiz's appellant's brief was therefore due on January 4, 2016. In lieu of filing the brief, Ortiz filed a series of motions to abate the appeal for appointment of counsel. We denied the motions because, while Ortiz may well be indigent, he has not met the requirements of article 64.01(c) for appointment of counsel in connection with his post-conviction motion for DNA testing. See id. art. 64.01(c) (requiring trial court to find reasonable grounds for the motion); see also Aekins v. State, No. 07-15-00139-CR, 2016 WL 2609597, at *2 (Tex. App.—Amarillo May 4, 2016, no pet.) (mem. op., not designated for publication). Ortiz also requested a free copy of the entire record from his 2011 trial for use in preparing his appellant's brief in this Chapter 64 appeal. His request was denied because an appeal from an order denying a post-conviction motion for DNA testing is limited to the matters directly relevant to the motion for DNA testing, and Ortiz did not demonstrate the relevancy of the requested records. See id. arts. 64.01-.05. Despite notification from this court on September 22, 2016, that if Ortiz failed to file his appellant's brief, the appeal would be submitted on the record alone, without briefs, Ortiz has not filed his appellant's brief.
In the absence of an appellant's brief setting forth issues and legal argument, our review of the trial court's order denying post-conviction DNA testing is limited to fundamental error on the face of the record. See TEX. CODE CRIM. PROC. ANN. art. 44.33(b) (West 2006) (appellant's failure to file his brief does not authorize dismissal or the court's refusal to consider the case on appeal); TEX. R. APP. P. 38.8(b)(1), (4); see also Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994).
The record in this appeal properly consists only of Ortiz's indictment, judgment of conviction, motion for post-conviction DNA testing, the trial court's order denying the motion, its certificate of right to appeal the order, and Ortiz's notice of appeal. Our examination of the limited record discloses no fundamental error. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (fundamental error occurs when certain constitutional rights are violated, such as the right to counsel, the right to an impartial judge, the right against unlawful exclusion of members of the defendant's race from the grand jury, the right to self-representation at trial, or the right to a public trial) (citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). Here, the only fundamental error potentially shown by the record of the Chapter 64 proceeding is the trial court's denial of Ortiz's request for court-appointed counsel. However, even if erroneous, that ruling cannot constitute fundamental error because an inmate seeking post-conviction DNA testing under Chapter 64 has no right to counsel under the United States Constitution or the Texas Constitution. In re Beasley, 107 S.W.3d 696, 697 (Tex. App.—Austin 2003, no pet.). The Legislature conditioned appointment of counsel for an indigent person in a Chapter 64 proceeding on the trial court's finding that "reasonable grounds" exist for filing the motion. TEX. CODE CRIM. PROC. ANN. art. 64.01(c). The trial court expressly found that Ortiz failed to establish a reasonable ground for filing his motion for post-conviction DNA testing. Accordingly, we conclude the record does not demonstrate fundamental error, and we affirm the trial court's order denying Ortiz's motion for post-conviction DNA testing pursuant to Chapter 64.
Rebeca C. Martinez, Justice DO NOT PUBLISH