Opinion
No. 04-18-00316-CR
05-23-2018
Eustorgio Guzman RESENDEZ, Appellant v. The STATE of Texas, Appellee
From the 229th Judicial District Court, Starr County, Texas
Trial Court No. 91-CR-43-B
Judge Gilberto Hinojosa, Judge Presiding
ORDER
Appellant attempts to appeal the trial court's "failure to appoint counsel under Texas Code of Criminal Procedure chapter 64.01(c) and failure ... to rule on DNA Motion." See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West 2018).
A trial court's denial of a request for appointed counsel to file a postconviction motion for DNA testing is not immediately appealable. Gutierrez v. State, 307 S.W.3d 318, 319, 323 (Tex. Crim. App. 2010). "Such an appeal is premature; a motion for appointed counsel is a preliminary matter that precedes the initiation of Chapter 64 proceedings." Id. at 323. Thus, it appears that we lack jurisdiction over this appeal because there is no final judgment or order subject to appeal. See id.
In addition, an appeal from a denial of a motion for DNA testing is treated in the same manner as an appeal of any other criminal matter. See TEX. CODE CRIM. PROC. ANN. art. 64.05 (West 2018). Texas Rule of Appellate Procedure 26.2 provides that an appeal is perfected when notice of appeal is filed within thirty days after the day the trial court enters an appealable order. TEX. R. APP. P. 26.2(a)(1). The time within which to file the notice may be enlarged if, within fifteen days after the deadline for filing the notice, the party files the notice of appeal and a motion complying with Rule 10.5(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 26.3. Thus, it appears that we lack jurisdiction over this appeal because there is no final judgment or order subject to appeal.
We therefore ORDER appellant to show cause in writing why this appeal should not be dismissed for lack of jurisdiction within thirty days from the date of this order. See TEX. R. APP. P. 43.2(f). All other appellate deadlines are SUSPENDED pending our resolution of the jurisdictional issue.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 23rd day of May, 2018.
/s/_________
Keith E. Hottle
Clerk of Court