Opinion
NO. 02-18-00119-CR
05-17-2018
CHARLES LEE MARTIN APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 38,715-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Charles Lee Martin attempts to appeal the trial court's February 6, 2018 order denying his motion for court-appointed counsel to help him obtain an order for postconviction forensic DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West 2018). Because this order is neither a final judgment nor an immediately appealable interlocutory order, we dismiss Martin's appeal for want of jurisdiction.
Background
Martin's underage daughter had a child. Martin v. State, No. 02-14-00003-CR, 2014 WL 5089185, at *1 (Tex. App.—Fort Worth Oct. 9, 2014, pet. ref'd) (mem. op., not designated for publication). Following the results of DNA paternity testing, Martin was charged with and pleaded guilty to three counts of sexual assault of a child and one count of aggravated sexual assault of a child. Id. The trial court sentenced him to 20 years' confinement for the sexual-assault counts and 30 years' confinement for the aggravated-sexual-assault count. Id.
In May 2006, the trial court denied Martin's motion for postconviction DNA testing. See Martin v. State, No. 2-06-272-CR, 2007 WL 529905, at *1 (Tex. App.—Fort Worth Feb. 22, 2007, no pet.) (mem. op., not designated for publication). Martin attempted to appeal this order, but this court dismissed the appeal for want of jurisdiction because his notice of appeal was untimely filed. See id. Martin filed another motion for DNA testing, which the trial court also denied. See Martin, 2014 WL 5089185, at *1. In October 2014, this court affirmed that denial on the merits. Id. at *2.
Martin was represented by counsel in his two previous DNA testing proceedings. In October 2017, he filed in the trial court a motion for appointed counsel to file another motion for DNA testing, claiming that "newer and more probative exculpatory testing techniques" now exist. See Tex. Code Crim. Proc. Ann. art. 64.01(b)(2)(A), (c). In February 2018, the trial court found that Martin "has not shown there are reasonable grounds upon which to file a motion for forensic DNA testing" and denied his request for appointed counsel. Martin attempts to appeal this order.
Jurisdiction
Although an order denying a motion for postconviction DNA testing is an appealable order, an order denying appointed counsel to assist with filing a motion for postconviction DNA testing is not. Gutierrez v. State, 307 S.W.3d 318, 321, 323 (Tex. Crim. App. 2010). Because the order Martin appeals is not an immediately appealable interlocutory order or a final judgment, we notified him of our concern that we lack jurisdiction over his appeal. See Tex. R. App. P. 26.2(a); Gutierrez, 307 S.W.3d at 323. We warned him that we would dismiss his appeal for want of jurisdiction unless he or any party responded showing grounds for continuing the appeal. See Tex. R. App. P. 43.2(f), 44.3. Martin filed a response, but it does not show grounds for continuing the appeal.
Regarding appeals from the denial of appointed counsel to file a motion for postconviction DNA testing, the court of criminal appeals has explained:
Such an appeal is premature; a motion for appointed counsel is a preliminary matter that precedes the initiation of Chapter 64 proceedings. At this stage, a convicted person has only contemplated the filing of a motion for DNA testing. . . . The better course is for a convicted person to file a motion for DNA testing and, if and when the motion is denied, appeal any alleged error made by the trial court in refusing to appoint counsel.Gutierrez, 307 S.W.3d at 323 (citations omitted). Here, the trial court's order denied Martin's request for appointed counsel. It did not deny a motion for DNA testing, nor is there such a motion in the record before us.
Conclusion
Because Martin attempts to appeal from the trial court's denial of his motion for appointed counsel rather than an order denying a motion for forensic DNA testing, we have no jurisdiction to consider his appeal. See id. at 322-23. Accordingly, we dismiss this appeal for want of jurisdiction. See id. at 323; Manns v. State, No. 02-17-00259-CR, 2017 WL 6947903, at *1 (Tex. App.—Fort Worth Oct. 19, 2019, no pet.) (mem. op., not designated for publication); see also Tex. R. App. P. 43.2(f).
/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE PANEL: KERR, PITTMAN, and BIRDWELL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 17, 2018