                                                                                             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)
