Opinion
NO. WR-79,516-02
11-16-2016
IN RE CHRISTOPHER SCHMOTZER, Relator
ON RELATOR'S PETITION FOR WRIT OF CERTIORARI FROM CAUSE NO. 09-01287-CRF-85 BRAZOS COUNTY
ALCALA, J., filed a concurring opinion.
CONCURRING OPINION
Christopher Schmotzer, relator, complains in this petition for a writ of certiorari that he could not timely file a notice of appeal because he was not told by the district clerk or his attorney of the denial of his motion for DNA testing until the time for filing a notice of appeal had already passed. He asks for a late appeal. However, a certiorari petition, as relator has filed, is not the appropriate vehicle to seek a late appeal of a ruling denying a motion for post-conviction DNA testing under Chapter 64 because there is a statutory right to appeal, which defeats the purpose of a certiorari petition. See Ex parte Brand, 822 S.W.2d 636, 639 (Tex. Crim. App. 1992) ("While we reserve for another day the decision regarding what type of cases over which we shall exercise common-law certiorari, we now decide that the writ shall not issue in any case in which there is a right to appeal.").
Relator lost his right of appeal because he did not receive timely notice of the trial court's ruling denying his motion for DNA testing. As I have noted before in similar cases, the type of problem that is occurring in this case is systematic, widespread, and should be addressed with a revision of the rules of appellate procedure applicable to appeals filed by defendants seeking to challenge a trial court's denial of post-conviction DNA testing. See Davis v. State, No. PD-1490-14, 2015 WL 9594718, at *2 (Tex. Crim. App. Mar. 18, 2015) (per curiam) (Alcala, J., concurring). Although he lost the right of appeal in the instant case, relator may be permitted to file another motion for DNA testing and to obtain another ruling that he may appeal, assuming that he obtains timely notice of that ruling. See id. With these comments, I join this Court's order. Filed: November 16, 2016 Do Not Publish