Gregory Michael Klapesky v. State ( 2015 )

ACCEPTED
03-15-00244-CR
5571848
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/5/2015 4:57:40 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00244-CR
In the FILED IN
3rd COURT OF APPEALS
Court of Appeals for the Third District of Texas AUSTIN, TEXAS
at Austin 6/5/2015 4:57:40 PM
___________________________ JEFFREY D. KYLE
Clerk
On Appeal from the 26th Judicial District Court, of
Williamson County, Texas
In Cause No. 03-1063-K26
____________________________
GREGORY MICHAEL KLAPESKY
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
STATE’S MOTION TO DISMISS
_____________________________
TO THE HONORABLE COURT:
COMES NOW Appellee, the State of Texas, by and through the
undersigned assistant district attorney, and files this Motion to Dismiss. The State
contends that this Court should dismiss this appeal because neither a lack or a
ruling nor an order denying the appointment of counsel in an Chapter 64 DNA
proceeding is not an immediately appealable order.
In support hereof, Appellant would show this Court the following:
I. Appellant Appeals Lack of Ruling on Request for Appointed Counsel
Appellant has filed a pro se motion for DNA testing under Chapter 64 Tex.
Code Crim. Proc. See Exhibit A. He has filed a Request for Appointment of
Counsel. See Exhibit B. The trial Court recently gave to the State notice and a date
by which to comply with its duties under Art. 64. See Exhibit C. The trial court
has not ruled on either of Appellant’s motions.
Appellant states in his notice for appeal, that he is appealing based on his
request for an appointed attorney, “Because the Court has not notified the
Appellant of the ruling under this filing, he can only assume that this Appealable
order has been denied.”
II. There is No Appealable Order from which Appellant can Appeal
The State contends that this Court should dismiss this appeal because,
contrary to Appellant’s assertion, an order denying the appointment of counsel in a
Chapter 64 proceeding is not an immediately appealable order. Gutierrez v. State,
307 S.W.3d 318, 319 (Tex. Crim. App. 2010). The Court of Criminal Appeals has
held:
[I]t would be a waste of judicial resources to entertain a challenge to a
trial judge's refusal to appoint counsel when the convicted person has not
yet initiated Chapter 64 proceedings. The better course is for a convicted
person to file a motion for DNA testing and, if and when the motion is
denied, appeal any alleged error made by the trial judge in refusing to
appoint counsel. If a reviewing court determines that the trial judge erred
in failing to appoint counsel, then the case will be remanded to the trial
court so the convicted person can file a subsequent motion for DNA
testing with the assistance of counsel.
Id.
Thus, even if the trial court denies Appellant’s Request for Appointment of
Counsel, he cannot immediately appeal that denial. The fact that the trial court has
yet to rule on his request makes the inappropriateness of the instant appeal even
more clear.
III. Prayer
WHEREFORE PREMISES CONSIDERED, Appellee respectfully requests
that this Court dismiss the instant appeal for lack of an appealable order.
Respectfully submitted,
Jana Duty
District Attorney
Williamson County, Texas
/s/ John C. Prezas
John C. Prezas
Assistant District Attorney
State Bar Number 24041722
405 Martin Luther King #1
Georgetown, Texas 78626
(512) 943-1248
(512) 943-1255 (fax)
jprezas@wilco.org
CERTIFICATE OF SERVICE
I certify that a copy of the State’s Motion to Dismiss has been sent by
certified mail to Applicant, on June 5, 2015, to the following address: Gregory
Michael Klapesky, TDJC# 1295883, William G. McConnell Unit, 3001 S. Emily
Dr., Beeville, Texas 78102.
_/S/ John C. Prezas____________________
John C. Prezas
CERTIFICATE OF COMPLIANCE
I certify that the State’s Motion to Dismiss contains 421 words, after
applicable exclusions, in compliance with amended Texas Rule of Appellate
Procedure 9.4(3)
_/S/ John C. Prezas____________________
John C. Prezas
EXHIBIT A
(Pro Se Motion for DNA Testing)
EXHIBIT B
(Request for Appointment of Counsel)
EXHIBIT C
(Trial Court’s Notice to the State)