Opinion
NO. 02-16-00055-CR
04-21-2016
STANFORD REYNOLDS APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1334683D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Stanford Reynolds appeals from the trial court's order denying his motion for court-appointed counsel to assist him in obtaining an order for postconviction DNA testing pursuant to chapter 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp. 2015). We hold that the order Reynolds seeks to appeal is an interlocutory, unappealable order. We therefore dismiss this appeal for want of jurisdiction.
On February 13, 2014, Reynolds was convicted of aggravated assault with a deadly weapon and was sentenced to seven years' confinement. On November 3, 2015, Reynolds filed with the trial court a request for the appointment of counsel to pursue a motion for forensic DNA testing, attaching an affidavit of inability to pay costs. See id. He additionally filed a "Statement of Facts," in which he asked that the knife used in the offense be subject to forensic DNA testing. The trial court notified the State of the filings and ordered the State to file a response. See id. art. 64.02 (West Supp. 2015). On December 31, 2015, the State filed a memorandum with proposed findings of fact and conclusions of law and a response, arguing that Reynolds's request for court-appointed counsel should be denied. On January 6, 2016, the trial court adopted the State's memorandum, findings, and conclusions and denied Reynolds's request for court-appointed counsel to pursue postconviction DNA testing. The trial court specifically found that Reynolds was not entitled to counsel "because there are no reasonable grounds for a Motion for DNA Testing under Chapter 64." See id. art. 64.01(c).
Reynolds filed a pro se notice of appeal on February 1, 2016. On March 8, we notified Reynolds that we did not believe we had jurisdiction over his attempted appeal and requested that he file a response showing grounds for continuing the appeal. See Tex. R. App. P. 26.2(a), 44.3. In response to our letter, Reynolds filed a "Rule 44.4 Motion for Corrections Remediable Errors" but failed to raise grounds for continuing the appeal.See Tex. R. App. P. 44.4.
Because we ultimately conclude that we do not have jurisdiction over this appeal, we do not address this motion. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding if appellate court has no jurisdiction over appeal, it may "take no action other than to dismiss the appeal"). --------
An order denying a motion for postconviction DNA testing is a final, appealable order under Texas Rule of Appellate Procedure 25.2(a)(2). Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010). However, an order denying appointed counsel to assist with filing a motion for postconviction DNA testing is an interlocutory, unappealable order. Id. at 323; Fry v. State, 112 S.W.3d 611, 613 (Tex. App.—Fort Worth 2003, pet. ref'd); see McCuin v. State, No. 02-15-00459-CR, 2016 WL 673182, at *1 (Tex. App.—Fort Worth Feb. 18, 2016, no pet.) (mem. op., not designated for publication); Anderson v. State, No. 02-14-00410-CR, 2015 WL 1407575, at *1 (Tex. App.—Fort Worth Mar. 26, 2015, no pet.) (mem. op., not designated for publication). Because Reynolds attempts to appeal from an order denying appointed counsel under article 64.01(c), we dismiss this appeal for want of jurisdiction.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 21, 2016