David Lancelot Jenkins, Jr. v. State ( 2010 )

NO. 12-10-00267-CR
NO. 12-10-00268-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID LANCELOT JENKINS, JR.,
APPELLANT ' APPEALS FROM THE 402ND
V. ' JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS, ' WOOD COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
PER CURIAM
Appellant, David Lancelot Jenkins, Jr., attempts to appeal from an order denying
his motion for appointment of counsel pursuant to article 64 of the Texas Code of
Criminal Procedure.
A convicted person is entitled to appointed counsel if (1) he informs the trial
judge that he wishes to submit a motion for forensic DNA testing under chapter 64, (2)
the trial judge finds that “reasonable grounds” exist for the filing of the motion, and (3)
the trial judge finds that the convicted person is indigent. TEX. CODE CRIM. PROC. ANN.
art. 64.01(c) (Vernon Supp. 2010). Except in capital cases in which the death sentence
was imposed, an appeal under chapter 64 is to a court of appeals in the same manner as
an appeal of any other criminal matter. Id. art. 64.05 (Vernon 2006). However, the court
of criminal appeals has recently held that an order denying appointed counsel under
article 64.01(c) is not an immediately appealable order. Gutierrez v. State, 307 S.W.3d
318, 319 (Tex. Crim. App. 2010). Instead, the order is appealable “if and when” the
motion for forensic DNA testing is denied. Id. at 323.
On August 17, 2010, this court notified Appellant that the information received in
these appeals does not include a final judgment or other appealable order and therefore
does not show the jurisdiction of this court. See TEX. R. APP. P. 37.2. Appellant was
further notified that these appeals would be dismissed unless the information was
amended on or before September 16, 2010, to show the jurisdiction of this court. See
TEX. R. APP. P. 44.3. Appellant responded by furnishing a copy of the order denying his
motion for appointed counsel. Because this order is not appealable, Appellant has not
shown the jurisdiction of this court. See id. Accordingly, these appeals are dismissed for
want of jurisdiction. See TEX. R. APP. P. 42.3(a).
Opinion delivered September 15, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)