                                                                       ACCEPTED
                                                                 03-14-00499-CV
                                                                         4079042
                                                        THIRD COURT OF APPEALS
                                                                  AUSTIN, TEXAS
                                                              2/9/2015 4:11:02 PM
                                                                JEFFREY D. KYLE
                                                                           CLERK
            NO. 03-14-00499-CV

       IN THE COURT OF APPEALS                    FILED IN
                                           3rd COURT OF APPEALS
            THIRD DISTRICT                     AUSTIN, TEXAS
             AUSTIN, TEXAS                 2/9/2015 4:11:02 PM
                                             JEFFREY D. KYLE
          ROBERT LEE MARTIN,                       Clerk
              APPELLANT

                     VS.

          THE STATE OF TEXAS,
               APPELLEE


APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
           TRAVIS COUNTY, TEXAS
           CAUSE NUMBER 95-5530


      STATE’S MOTION TO DISMISS


                           Rosemary Lehmberg
                           District Attorney
                           Travis County, Texas

                           Kathryn A. Scales
                           Assistant District Attorney
                           State Bar No. 00789128
                           P.O. Box 1748
                           Austin, Texas 78767
                           (512) 854-9400
                           Fax No. (512) 854-4810
                           Kathryn.Scales@traviscountytx.gov
                           AppellateTCDA@traviscountytx.gov


  ORAL ARGUMENT NOT REQUESTED
                                         TABLE OF CONTENTS


TABLE OF CONTENTS...........................................................................................2
TABLE OF AUTHORITIES .....................................................................................3
STATEMENT OF THE CASE..................................................................................5
STATEMENT OF FACTS ........................................................................................5
STATE’S MOTION TO DISMISS ...........................................................................8
PRAYER ..................................................................................................................11
CERTIFICATE OF COMPLIANCE.......................................................................12
CERTIFICATE OF SERVICE ................................................................................12




                                                            2
                                     TABLE OF AUTHORITIES

         Cases

Gutierrez v. State, 307 S.W.3d 318 (Tex. Crim. App. 2010) ....................................9

Martin v Sicola, No. 03-09-00453-CV, 2010 Tex. App. LEXIS 9544 (Tex. App.—

   Austin December 1, 2010)......................................................................................5

Martin v. Quarterman, A-08-CA-732-SS, 2009 U.S. Dist. LEXIS 103735 (W.D.

   Tex., August 5, 2009) .........................................................................................6, 7

Martin v. State, 2014 Tex. App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin

   Jan. 23, 2014) (mem. op. not designated for publication)............................. 7, 8, 9

Swearingen v. State, 189 S.W.3d 779 (Tex. Crim. App. 2006).................................9

Wolfe v. State, 120 S.W.3d 368 (Tex. Crim. App. 2003) ..........................................9




         Statutes

TEX CODE CRIM. PROC., Chapter 64 ..........................................................................7

TEX. CODE CRIM. PROC. art. 64.01.............................................................................8

TEX. CODE CRIM. PROC., art. 44.02............................................................................8

         Rules

TEX. R. APP. P. 25.2(a)(2) ..........................................................................................8

TEX. R. APP. P. 25.2(d).............................................................................................10


                                                          3
                               NO. 03-14-00499-CV

                        IN THE COURT OF APPEALS
                             THIRD DISTRICT
                              AUSTIN, TEXAS

                            ROBERT LEE MARTIN,
                                APPELLANT

                                        VS.

                            THE STATE OF TEXAS,
                                 APPELLEE


                APPEAL FROM THE 331ST JUDICIAL DISTRICT COURT
                           TRAVIS COUNTY, TEXAS
                           CAUSE NUMBER 95-5530


                       STATE’S MOTION TO DISMISS


TO THE HONORABLE COURT OF APPEALS:

      The State of Texas, by and through the District Attorney for Travis County,

respectfully submits this motion to dismiss in response Appellant’s brief.




                                         4
                           STATEMENT OF THE CASE

       In Cause Number 955530, the appellant was charged by indictment with

committing the offense of aggravated sexual assault. Martin v. Quarterman, A-08-

CA-732-SS, 2009 U.S. Dist. LEXIS 103735, at *2 (W.D. Tex., August 5, 2009).

On June 4, 2001, the case was called for trial in the 331st District Court, with the

Honorable Judge Bob Perkins presiding. Id. On June 6, 2001, a jury found the

appellant guilty of committing that offense. Id. On June 7, 2001, the jury assessed

his punishment at imprisonment for life plus a fine of $10,000. Id.

      On July 6, 2011, Appellant filed a motion for appointment of counsel to

assist him in obtaining an order for DNA testing of victim’s “blue panties”

pursuant to TEX. CODE CRIM. PROC., Chapter 64. CR 3-15. The Honorable Judge

David Crain, presiding judge of the 331st District Court of Travis County, Texas

issued an order denying that motion on July 18, 2014. CR 38.

      On August 15, 2014, Appellant filed his notice of appeal. CR 56-59. To

date, the trial court has not certified Appellant’s right to appeal.


                             STATEMENT OF FACTS

      Appellant was convicted by jury of aggravated sexual assault and sentenced

to life in prison with a $10,000 fine on June 7, 2001. Martin v Sicola, No. 03-09-

00453-CV, 2010 Tex. App. LEXIS 9544, at *1 (Tex. App.—Austin December 1,

2010). The aggravated sexual assault alleged use of a deadly weapon and the

                                            5
verdict was guilty as charged. Martin v. Quarterman, A-08-CA-732-SS, 2009 U.S.

Dist. LEXIS 103735, at *2 (W.D. Tex., August 5, 2009).


      The complainant, Cherry Nash, testified that she was sitting at a street corner

around 6:00 pm. on July 11, 1995 when Appellant approached her, offered her

crack cocaine and accompanied her to a wooded area near some railroad tracks by

a park. Martin v. Quarterman, at *4, *8. Once they were isolated in that wooded

area, Appellant seized Nash by the throat and choked her to near unconsciousness,

produced a knife and forced her to have oral and vaginal sex by threatening her

with the knife. Id. The next day, Nash went to the police with a sketch of Appellant

and then was taken to a hospital for a rape exam. Martin v. Quarterman, at *5. She

testified that Appellant had ejaculated in her and that she had not washed between

the assault and the exam. Martin v. Quarterman, at *7. She later gave a statement

and picked Appellant out of a photo lineup. Id. She identified Appellant at trial.

Martin v. Quarterman, at *5.


      The interviewing police officer and the rape exam nurse testified that the

injuries on Nash were consistent with her story of being strangled to the ground in

a wooded area. Martin v. Quarterman, at *8, 9. The nurse took vaginal swabbings

from the victim which were preserved. Martin v. Quarterman, at *9. The

supervisor of the Austin Police DNA crime lab testified that the sperm found on

those swabs was consistent with Appellant’s, but that the techniques used in
                                         6
February, 1995 were not as specific as those available at the time of trial. At

punishment stage, five other women testified that the appellant had assaulted or

attempted to assault them in a similar manner. Martin v. Quarterman, at *13-16.


      In an order filed on November 24th, 2009, the trial court granted the

appellant’s motion for DNA testing without opposition from the State. Martin v.

State, 2014 Tex. App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23,

2014) (mem. op. not designated for publication). The trial court issued findings of

fact and conclusions of law in April of 2010 reflecting that the testing showed that

the major DNA profile on the vaginal swabs matched the appellant’s DNA and that

those results were not exculpatory. Id. The DNA report stated that the frequency of

occurrence of the major profile in the sample was one in 3.840 quintillion

unrelated persons. Id.


      On December 8, 2010, Appellant filed a motion for appointment of counsel

to assist him in obtaining an order to search the Texas DNA database. Id. On July

6, 2011 and prior to obtaining a ruling on his December 8, 2010 motion, Appellant

filed another motion for appointment of counsel to assist him in obtaining an order

for DNA testing pursuant to TEX CODE CRIM. PROC., Chapter 64. CR 3-15. The

trial court denied Appellant’s December 8, 2010 motion and issued orders to that

effect on November 17, 2011 and December 19, 2011. Martin v. State, 2014 Tex.

App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23, 2014) (mem. op.
                                         7
not designated for publication). The trial court issued an order denying Appellant’s

July 6, 2011 motion on July 18, 2014. CR 38.


                        STATE’S MOTION TO DISMISS

      The State respectfully requests that the instant appeal be dismissed, for the

following reasons:


I. An order denying appointed counsel is not an "appealable order" under TEX. R.

APP. P. 25.2(a)(2):


      A convicted person may submit to the convicting trial court a motion

seeking DNA testing if the motion is accompanied by an affidavit and seeks testing

of biological material not previously tested or subject to newer test techniques that

are reasonably likely to produce more accurate and probative results than the

earlier test. TEX. CODE CRIM. PROC. art. 64.01(b). The person seeking testing is

entitled to appointed counsel for a proceeding related to DNA testing if the court

"finds reasonable grounds" for the motion. Id. art. 64.01(c).


      The right of a convicted person to appeal is set out in TEX. R. APP. P.

25.2(a)(2). In pertinent part, Rule 25.2(a)(2) provides that a convicted person has

the right to appeal under TEX. CODE CRIM. PROC., art. 44.02 and the appellate rules.

Under Rule 25.2(a)(2), there must be "a judgment of guilt or other appealable

order."

                                          8
      The Texas Court of Criminal Appeals has held that an order denying DNA

testing is an "appealable order" under Rule 25.2(a)(2). Swearingen v. State, 189

S.W.3d 779, 781 (Tex. Crim. App. 2006). At the same time, however, the Court of

Criminal Appeals has also held that the decision to deny appointed counsel is not

an "appealable order" under Rule 25.2(a)(2). Gutierrez v. State, 307 S.W.3d 318,

323 (Tex. Crim. App. 2010). That holding was recently highlighted by this Court

in another appeal filed by this very Appellant. See Martin v. State, 2014 Tex. App.

LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23, 2014) (mem. op. not

designated for publication). In that case, Appellant sought appointed counsel to

assist him not in obtaining DNA testing but in having those test results compared

to the statewide DNA database. After noting that the decision to deny appointed

counsel is, generally speaking, not an "appealable order" under Rule 25.2(a)(2),

this Court then dismissed Martin’s appeal for lack of jurisdiction, holding that the

request did not fall within the purview of Chapter 64 and is therefore not

reviewable on appeal. Martin at *6-7; Cf. Wolfe v. State, 120 S.W.3d 368, 371

(Tex. Crim. App. 2003) (addressing whether, under 2003 version of Article 64.05,

court of appeals had jurisdiction to review trial court's denial of request to appoint

DNA expert).




                                          9
      In the instant case, Appellant has once again filed an appeal of an order that

the Appellate Court lacks jurisdiction to review. State would, therefore,

respectfully request that Appellant’s appeal be dismissed.


II. The trial court has not certified that Appellant has the right to appeal:


      Rule 25.2(d) of the Texas Rules of Appellate Procedure provides as follows:


      Certification of Defendant's Right of Appeal. --If the defendant is the
      appellant, the record must include the trial court's certification of the
      defendant's right of appeal under Rule 25.2(a)(2). The certification
      shall include a notice that the defendant has been informed of his
      rights concerning an appeal, as well as any right to file a pro se
      petition for discretionary review. This notification shall be signed by
      the defendant, with a copy given to him. The certification should be
      part of the record when notice is filed, but may be added by timely
      amendment or supplementation under this rule or Rule 34.5(c)(1) or
      Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2).
      The appeal must be dismissed if a certification that shows the
      defendant has the right of appeal has not been made part of the
      record under these rules.
TEX. R. APP. P. 25.2(d) (emphasis added).


      In the case at bar, the trial court has not issued an order certifying

Appellant’s right to appeal its July 18, 2014 order. Consequently, Appellant’s

appeal “must be dismissed.” TEX. R. APP. P. 25.2(d).




                                          10
                            PRAYER

WHEREFORE, the State requests that the Court dismiss the instant appeal.

                                     Respectfully submitted,



                                     Rosemary Lehmberg
                                     District Attorney
                                     Travis County


                                     /s/ Kathryn A. Scales
                                     Kathryn A. Scales
                                     Assistant District Attorney
                                     State Bar No. 00789128
                                     P.O. Box 1748
                                     Austin, Texas 78767
                                     (512) 854-9400
                                     Fax No. (512) 854-4810
                                     Kathryn.Scales@traviscountytx.gov
                                     AppellateTCDA@traviscountytx.gov




                                11
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies
that the length of this response is 1,451 words, which is within the limits imposed
by the Rule. The State also certifies, pursuant to Texas Rule of Appellate
Procedure 9.4(e), that a conventional 14-point typeface was used to generate this
brief.

                                                          /s/ Kathryn A. Scales
                                                          Kathryn A. Scales




                         CERTIFICATE OF SERVICE

       I hereby certify that, on the 9th day of February, 2015, the foregoing State’s
brief was sent, via U.S. mail, electronic mail, facsimile, or electronically through
the electronic filing manager, to Appellant, Robert Lee Martin #1050629 at The
Clements Unit, 9601 Spur 591, Amarillo, Texas 79107-9606.

                                                          /s/ Kathryn A. Scales
                                                          Kathryn A. Scales




                                         12
