Opinion
No. 07-17-00217-CR
08-09-2017
WAYNE EAST, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 104th District Court Taylor County, Texas
Trial Court No. 7099-B , Honorable Lee Hamilton, Presiding
ORDER OF ABATEMENT AND REMAND
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Wayne East appearing pro se, appeals the trial court's order denying his Chapter 64 motion for forensic DNA testing. We abate the appeal and remand the cause to the trial court for an amended certification of appellant's right of appeal.
This appeal was transferred to this court from the Eleventh Court of Appeals by order of the Supreme Court.
In 1982, appellant was convicted by a jury of capital murder and sentenced to death. In 1997, the Fifth Circuit Court of Appeals granted appellant habeas relief, vacating his death sentence and remanding his case for a new trial on punishment. See East v. Johnson, 123 F.3d 235, 241 (5th Cir. 1997). After remand, the State agreed to waive the death penalty and recommend a life sentence in exchange for appellant's admission of guilt and waiver of his right of appeal, including all rights to "pursue post-conviction or collateral relief from his conviction." The trial court accepted the parties' "Stipulation and Agreement," which was signed by the State, appellant, and appellant's counsel, and imposed a life sentence on September 10, 1999.
In 2016, appellant filed a motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The trial court denied the motion and appellant timely filed a notice of appeal. See TEX. CODE CRIM. PROC. ANN. art 64.05 (West 2006). The trial court subsequently issued a certification of appellant's right of appeal indicating that this "is a plea-bargain case, and the defendant has NO right of appeal" and that "the defendant has waived the right of appeal," but the certification was not signed by appellant. See TEX. R. APP. P. 25.2(d). The certification is, therefore, defective. Moreover, the certification appears contrary to the record.
An appellant's right to appeal an order denying DNA testing under Chapter 64 is not dependent on the appellant's right to appeal his original conviction. See Rodriguez v. State, 153 S.W.3d 245 (Tex. App.—El Paso 2004, order) (finding that the restrictions of appellate rule 25.2(a)(2) do not apply to an appeal from the denial of DNA testing). Thus, an appellant may appeal the denial of DNA testing even when the appellant's underlying conviction was a plea-bargain case. See Rodriguez, 153 S.W.3d at 248; see also TEX. CODE CRIM. PROC. ANN. art 64.03(b) (West Supp. 2016) (allowing a convicted person who pleaded guilty, nolo contendere, or made a confession to request DNA testing). Because appellant's Chapter 64 proceeding is not a "plea-bargain case," his right of appeal is not limited by appellate rule 25.2(a)(2). See TEX. R. APP. P. 25.2(a)(2) (In a plea bargain case, a defendant may only appeal those matters raised by written motion and ruled on before trial or permitted by the trial court.). Nevertheless, appellant may have waived his right to appeal the denial of his Chapter 64 motion by entering into the Stipulation and Agreement.
Accordingly, we abate this appeal and remand the cause to the 104th District Court of Taylor County (trial court) to prepare an amended certification of appellant's right of appeal consistent with the record. See TEX. R. APP. P. 25.2(f); Dears v. State, 154 S.W.3d 610, 613-14 (Tex. Crim. App. 2005) (requiring an appellate court to determine whether the certification comports to the record); Broussard v. State, No. 07-07-00405-CR, 2008 Tex. App. LEXIS 4534, at *1-2 (Tex. App.—Amarillo June 17, 2008, order) (per curiam) (not designated for publication) (directing the trial court to issue a certification of appellant's right of appeal from an order denying DNA testing). On remand, the trial court shall determine whether appellant knowingly, voluntarily, and intelligently waived his right to appeal the order denying DNA testing under Chapter 64. See Monreal v. State, 99 S.W.3d 615, 621 (Tex. Crim. App. 2003). So too shall it issue findings of fact and conclusions of law on those matters. The trial court shall utilize whatever means it finds necessary to secure appellant's signature on the amended certification. See TEX. R. APP. P. 25.2(d). The amended certification and the trial court's findings shall be included in a supplemental clerk's record filed with this court by September 8, 2017. TEX. R. APP. P. 34.5(c)(2). Should further time be needed to perform these tasks, then same must be requested before September 8, 2017.
It is so ordered.
Per Curiam Do not publish.