Opinion
No. 04-15-00761-CR
09-22-2016
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
Pro se appellant Christopher Shaun Ortiz seeks to appeal the trial court's order denying his motion for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 64.01-.05 (West 2006 & Supp. 2016). The appellant's brief was due on June 20, 2016, but was not filed. The clerk's office sent appellant a notice of late brief and appellant responded by filing a motion to abate the appeal for appointment of counsel. During the pendency of the appeal, appellant has filed a series of motions requesting that we abate the appeal so the trial court may appoint counsel to represent appellant on appeal. In our prior orders, we have denied those motions and explained that, although appellant may well be indigent, the clerk's record reflects the trial court found "no reasonable grounds" for the DNA motion and therefore appellant does not meet the statutory requirements for appointment of counsel in connection with his motion for DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (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."). A defendant has no independent federal or state constitutional right to counsel in a Chapter 64 proceeding. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011) (statutorily limited right to counsel).
Accordingly, we DENY appellant's motion to abate for appointment of appellate counsel. It is further ORDERED that if appellant fails to file a brief within thirty (30) days from the date of this order, this appeal will be submitted on the record alone, without briefs. TEX. R. APP. P. 38.8(b)(4); see Adeleke v. State, No. 02-15-00368-CR, 2016 WL 3033496, at *1 (Tex. App.— Fort Worth May 26, 2016, no pet.) (mem. op., not designated for publication) (resolving appeal from denial of post-conviction DNA testing and appointment for counsel without briefs, noting abatement under TEX. R. APP. P. 38.8(b) would be a useless act); see also Saldano v. State, 70 S.W.3d 873, 887-89 (Tex. Crim. App. 2002) (when appellant fails to file a brief, appellate review is limited to fundamental errors).
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of September, 2016.
/s/_________
Keith E. Hottle
Clerk of Court