Gerardo Gutierrez v. State

Fourth Court of Appeals
San Antonio, Texas
January 4, 2017
No. 04-16-00732-CR
Gerardo GUTIERREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2009CR4590
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
ORDER
Appellant attempts to appeal the trial court’s “decision to deny by operation of law his
motion requesting appointment of counsel pursuant to article 64, Code of Criminal Procedure.”
See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2015).
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. 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.
_________________________________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of January, 2017.
___________________________________
Keith E. Hottle
Clerk of Court