Allen Keith Anderson Sr. v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00410-CR
ALLEN KEITH ANDERSON SR. APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT ONE OF TARRANT COUNTY
TRIAL COURT NO. 1190510D
----------
MEMORANDUM OPINION1
----------
Appellant Allen Keith Anderson Sr. attempts to appeal an order denying his
request for the appointment of counsel to assist him in filing a motion for post-
conviction DNA testing. We hold such an order is interlocutory and dismiss his
appeal for want of jurisdiction.
1
See Tex. R. App. P. 47.4.
Background
On October 28, 2010, Appellant was sentenced to imprisonment for six
years in the Institutional Division of the Texas Department of Criminal Justice for
the offense of sexual assault.
On June 5, 2014, Appellant filed a pro se “Request for Appointment of
Counsel Pursuant to Article 64, Code of Criminal Procedure.” Appellant wanted
the assistance of counsel for the purpose of submitting a motion for DNA testing
under article 64. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (West Supp.
2014) (requiring appointment of counsel if (1) the person informs the court that
the person wants to file a motion for DNA testing, (2) the court finds reasonable
grounds for a motion to be filed, and (3) the court determines that the person is
indigent). Appellant attached a “Declaration of Inability to Pay Cost.”
On August 7, 2014, the trial court signed an order denying Appellant’s
“Request for Appointment of Counsel” because identity was not an issue and
because there were no reasonable grounds for a motion for DNA testing.
On August 26, 2014, Appellant filed a notice of appeal and identified the
August 7, 2014 order denying his “Motion for Appointment of Counsel” as the
order he wanted to appeal.
On January 2, 2015, Appellant filed a “Motion to Abate Appeal.” Appellant
wanted the appeal abated so he could obtain a copy of the record and prepare
his brief and so that he could file a motion for new trial.
2
On January 7, 2015, this court wrote Appellant, informed Appellant he was
appealing an interlocutory order, and instructed him to file a final order by
January 20, 2015. The court’s letter relied on Gutierrez v. State, 307 S.W.3d
318, 323 (Tex. Crim. App. 2010). The court informed Appellant that if no order
was signed and furnished by January 20, 2015, his appeal would be dismissed
for want of jurisdiction.
On January 22, 2015, Appellant filed a letter in which he indicated he had
moved to a transitional center and provided the court with his new address.
Appellant gave no indication of having received this court’s January 7, 2015
letter.
On January 29, 2015, the court sent Appellant the same letter that it had
sent him on January 7, 2015. This letter, however, was sent to Appellant’s new
address. The court gave Appellant until February 9, 2015, to file a final order.
On February 4, 2015, Appellant filed a letter in which he acknowledged he
had until February 9, 2015, to respond. On February 9, 2015, Appellant filed
another letter in which he asserted the court had jurisdiction over the order
denying counsel. Although unclear, Appellant appears to understand the issue
as being one of timeliness and not one of finality.
3
Discussion
An order denying the appointment of counsel is not a final, appealable
order. Gutierrez, 307 S.W.3d at 323. An appeal of the order denying counsel is
premature because, at this stage, the convicted person has only contemplated
filing a motion for DNA testing. Id.
The better course is for a convicted person to file a [pro se] 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.
Our review of the clerk’s record shows that the only motion Appellant filed
was his motion for the appointment of counsel. Appellant has not filed a motion
for DNA testing. It necessarily follows that the trial court has not denied any such
motion. Gutierrez requires this court to dismiss Appellant’s appeal as premature.
Id.; Chavez v. State, Nos. 02-10-00250-CR, 02-10-00251-CR, 2010 WL
3001176, at *1 (Tex. App.—Fort Worth July 29, 2010, no pet.) (mem. op., not
designated for publication).
4
Conclusion
Because an order denying appointed counsel under article 64.01(c) of the
Texas Code of Criminal Procedure is not an immediately appealable order, we
dismiss this appeal for want of jurisdiction. Appellant’s motion to abate the
appeal is dismissed for want of jurisdiction as well. Tex. R. App. P. 43.2(f).
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2015
5