Opinion
No. 04-15-00761-CR
05-17-2016
Christopher Shaun ORTIZ, Appellant v. The STATE of Texas, Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR11043
Honorable Kevin M. O'Connell, Judge Presiding
ORDER
Appellant, proceeding pro se, filed a notice of appeal stating his intent to appeal the trial court's order denying his post-conviction motion for forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. §§ 64.01-.05 (West 2006 & Supp. 2015). The clerk's record has been filed and appellant's brief is currently due. Appellant has filed a series of motions requesting that we abate the appeal so that the trial court may execute a "Certification of Defendant's Right to Appeal" stating he has the right to appeal denial of the DNA motion, and may appoint counsel to represent appellant in this appeal. In addition, appellant has 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.
The clerk's record reflects that the trial court denied appellant's post-conviction motion for DNA testing because the motion was not accompanied by an affidavit sworn to by appellant and containing a statement of facts in support of the motion as required by article 64.01(a-1). See TEX. CODE CRIM. PROC. ANN. § 64.01(a-1). The trial court further found there were not "reasonable grounds" for the motion to be filed, and therefore appellant was not entitled to appointment of counsel. See TEX. CODE CRIM. PROC. ANN. § 64.01(c). Therefore, although appellant may well be indigent, he has not met the requirements of section 64.01(c) for appointment of counsel in connection with his motion for DNA testing. See id. (stating the trial court shall appoint counsel for the convicted person in a proceeding under Chapter 64 "if . . . the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent."). Accordingly, appellant's request for appointment of counsel to represent him in this appeal from denial of his motion for DNA testing is DENIED.
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. See TEX. CODE CRIM. PROC. ANN. §§ 64.01-.05. Appellant is therefore only entitled to a copy of the record filed in this appeal from the denial of his DNA motion, not a copy of the entire appellate record from his 2011 trial. The clerk of this Court is hereby ORDERED to promptly provide appellant with a free copy of the clerk's record, and any supplemental clerk's record, filed in this appeal for use in preparing his appellant's brief.
Finally, the clerk's record does not contain a certification of defendant's right to appeal showing that appellant has the right to appeal denial of his DNA motion under Chapter 64. Rule 25.2(d) of the Texas Rules of Appellate Procedure requires the clerk's record to contain the trial court's certification of the defendant's right of appeal in all criminal cases. TEX. R. APP. P. 25.2(a)(2), (d). Accordingly, the trial court is ORDERED to prepare and file a trial court certification showing that the defendant has the right to appeal the denial of his post-conviction motion for DNA testing. See TEX. CODE CRIM. PROC. ANN. § 64.05. The trial court clerk is instructed to file a supplemental clerk's record containing the trial court certification in this court within ten (10) days from the date of this order. TEX. R. APP. P. 25.2(f), (d); 34.5(c); 37.1. The appellate deadlines in this appeal are suspended pending resolution of the certification issue.
Based on the foregoing, appellant's motions to abate this appeal are DENIED.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 17th day of May, 2016.
/s/_________
Keith E. Hottle
Clerk of Court