Opinion
No. 05-16-01471-CR No. 05-16-01473-CR
05-05-2017
OPIE DALE TOLAND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 86th Judicial District Court Kaufman County, Texas
Trial Court Cause Nos. 16851 , 17360
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
Opie Dale Taylor appeals the trial court's determination not to grant relief on his motions for reconsideration of a motion for forensic DNA testing and request to appoint counsel. We dismiss the appeals for want of jurisdiction.
Appellant is serving two concurrent life sentences for 1992 murder convictions. Appellant filed motions for forensic DNA testing and a request that counsel be appointed to represent him. The State responded that appellant confessed to both offenses and no relevant biological evidence remains to test that would tend to exculpate or exonerate any person.
The clerk's records as filed contain only the State's responses to appellant's motions and not the motions themselves.
On September 13, 2016, the trial court issued an order denying appellant's request for counsel. In its order, the trial court made findings that appellant failed to set out reasonable grounds for filing a motion for DNA testing, no reasonable grounds exist for further testing, no biological evidence is available that would tend to inculpate or exculpate anyone for the offenses, and appellant is not entitled to appointment of counsel. The trial court did not issue an order denying appellant's motion for DNA testing.
On October 11, 2016, appellant filed a motion for reconsideration of motion for forensic DNA testing and request for court appointed counsel. After the trial court took no action on the motion for reconsideration, appellant filed a notice of appeal on December 16, 2016 purporting to appeal the trial court's decision on his motion for reconsideration.
The trial court's rule 25.2(d) certifications assert appellant does not have the right to appeal an order denying appointment of counsel. See TEX. R. APP. P. 25.2(d). We agree. A trial court's order denying appointment of counsel to pursue DNA testing is an interlocutory order and not immediately appealable. See Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010). It follows that there can be no appeal from the trial court's refusal to reconsider its decision not to appoint counsel. See id. The issue of whether the trial court erred in denying appointment of counsel may be raised in an appeal from a final appealable order denying DNA testing. See id.
Appellant's notice of appeal also purports to appeal the trial court's failure to reconsider his motion for DNA testing. In response to an order from this Court, the trial court district clerk has filed a letter confirming that the trial court has not issued an order denying appellant's motion for DNA testing. Without a final order determining appellant's motion for DNA testing, this Court has no jurisdiction. See id.; Abbott v. State, 271 S.W.3d 694, 697 (Tex. Crim. App. 2008); Nikrasch v. State, 698 S.W.2d 443, 450 (Tex. App.—Dallas 1985, no pet.).
We dismiss appellant's appeals for want of jurisdiction.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
161471F.U05
JUDGMENT
On Appeal from the 86th Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 16851.
Opinion delivered by Justice Lang. Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered this 5th day of May, 2017.
JUDGMENT
On Appeal from the 86th Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 17360.
Opinion delivered by Justice Lang. Justices Myers and Stoddart participating.
Based on the Court's opinion of this date, the appeal is DISMISSED. Judgment entered this 5th day of May, 2017.