Opinion
NO. 03-18-00103-CR
05-04-2018
Ex parte Tom Robertson
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. A-05-0549-S , THE HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING MEMORANDUM OPINION
Appellant Tom Robertson attempts to appeal the trial court's denial of his request for appointed counsel pursuant to Chapter 64 of the Texas Code of Criminal Procedure.
In 2006, a jury convicted appellant of sexual assault of a child and assessed his punishment at 20 years in prison. See Tex. Penal Code §§ 22.011(a)(2), (f), 12.33; see Robertson v. State, No. 03-06-00303-CR, 2007 WL 2010782, at *2 (Tex. App.—Austin July 12, 2007, pet. ref'd) (mem. op., not designated for publication) (affirming judgment of conviction). Three years after his conviction, in January 2009, appellant filed his first request seeking the appointment of counsel pursuant to Chapter 64, which the trial court denied that same month. The next month, in February 2009, appellant filed a second request for appointed counsel under Chapter 64, which the trial court also denied in March 2009. Eight years later, in December 2017, appellant filed his third request for appointed counsel pursuant to Chapter 64. The trial court signed an order denying that third request on January 16, 2018. It is this order of denial that appellant seeks to appeal here.
Chapter 64 of the Code of Criminal Procedure establishes the procedures for a convicted person to obtain post-conviction DNA testing. Under the statute, an indigent convicted person intending to file a motion for post-conviction DNA testing has a limited right to appointed counsel to pursue DNA testing. Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011); see Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (entitlement to appointed counsel in Chapter 64 post-conviction DNA proceeding "is not absolute"); see also Tex. Code Crim. Proc. art. 64.01(c) (establishing prerequisites for appointment of counsel in Chapter 64 post-conviction DNA testing proceeding). The trial court's decision to deny a request for appointed counsel to assist in filing a motion for post-conviction DNA testing is not immediately appealable. Gutierrez, 307 S.W.3d at 322-23 (recognizing distinction between "issues that may be litigated on appeal and issues that are immediately appealable"); see Whitfield v. State, 430 S.W.3d 405, 408 n.11 (Tex. Crim. App. 2014); Joseph v. State, Nos. 03-17-00006-CR & 03-17-00007-CR, 2017 WL 637239, at *1 (Tex. App.—Austin Feb. 3, 2017, no pet.) (mem. op., not designated for publication); Padilla v. State, Nos. 03-12-00299-CR, 03-12-00300-CR, & 03-12-00301-CR, 2013 WL 3185896, at *3 (Tex. App.—Austin June 20, 2013, pet. ref'd) (mem. op., not designated for publication). Rather, the convicted person may appeal any alleged error in the trial court's refusal to appoint counsel in an appeal of the trial court's denial of the motion requesting DNA testing. Whitfield, 430 S.W.3d at 408 n.11; Gutierrez, 307 S.W.3d at 322-23; Joseph, 2017 WL 637239, at *1; Padilla, 2013 WL 3185896, at *3.
Accordingly, because an order denying appointed counsel under Chapter 64 is not an appealable order, we dismiss this appeal for lack of jurisdiction. See Joseph, 2017 WL 637239, at *1; Padilla, 2013 WL 3185896, at *3.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Dismissed for Want of Jurisdiction Filed: May 4, 2018 Do Not Publish