      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00499-CR1



                                  Robert Lee Martin, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
            NO. 955530, HONORABLE DAVID CRAIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Robert Lee Martin was charged with and found guilty of aggravated sexual assault.

See Tex. Pen. Code § 22.021; Martin v. State, No. 03-02-00435-CR, 2003 Tex. App. LEXIS 4138,

at *1-2 (Tex. App.—Austin May 15, 2003, pet. ref’d) (mem. op., not designated for publication)

(affirming conviction); see also Martin v. Quarterman, A-08-CA-732-SS, 2009 U.S. Dist. LEXIS

103735, at *2, *44 (W.D. Tex., Aug. 5, 2009) (describing Martin’s conviction and recommending

that his writ of habeas corpus be denied). Years after his conviction, Martin filed a request seeking

the appointment of counsel to help him obtain DNA testing under Chapter 64 of the Code of

Criminal Procedure, and the district court granted the motion. See Tex. Code Crim. Proc. art. 64.01;

Martin v. State, No. 03-11-00839-CR, 2014 Tex. App. LEXIS 639, at *1-2 (Tex. App.—Austin


       1
         When this appeal was originally filed, it was filed under cause number 03-14-00499-CV.
Upon reviewing the record in this case, the case has been re-styled to reflect that this appeal pertains
to a criminal matter.
Jan. 23, 2014, no pet.) (mem. op., not designated for publication). Martin then requested that testing

be performed on the victim’s clothing. After the testing was performed, the trial court “concluded

that the results were not exculpatory and that, had the results been available at the original trial, it

was reasonably probable that Martin would have been convicted.” Martin, 2014 Tex. App. LEXIS

639, at *2. Following that ruling, Martin filed another request for the appointment of counsel to

assist him in obtaining an order for DNA testing.2 After considering the request, the trial court

issued an order denying the request. That denial serves as the basis for this appeal.

                On appeal, Martin asserts that the trial court’s ruling should be reversed because the

assistance of counsel will help him pursue DNA testing relevant to the issue of the identity of the

assailant. After Martin filed this appeal, the State filed a motion to dismiss arguing that this Court

should dismiss the appeal because the trial court’s ruling is not an appealable order.

                Chapter 64 outlines the procedure for obtaining post-conviction DNA testing. In a

recent opinion, the Court of Criminal Appeals explained that “the decision to deny appointed

counsel [under Chapter 64] is not an ‘appealable order’ under Rule 25.2(a)(2).” Gutierrez v. State,


        2
          We note that prior to filing this request for counsel, Martin also filed a request for the
appointment of counsel to help him search the State’s DNA database. “The trial court denied Martin’s
motion, finding that the earlier testing determined that Martin was the source of the DNA found on
the victim, that ‘the frequency of occurrence of the major profile in the sample was one in 3.840
quintillion unrelated individuals,’ and that there were no reasonable grounds for appointing counsel.”
Martin v. State, No. 03-11-00839-CR, 2014 Tex. App. LEXIS 639, at *3-4 (Tex. App.—Austin
Jan. 23, 2014, no pet.) (mem. op., not designated for publication). “The court concluded that Martin
had not shown a viable argument that retesting would yield more accurate results and agreed with
the State that the code of criminal procedure did not provide for a comparison of test results with the
State’s database.” Id. at *4. On appeal, this Court determined that “Martin sought appointed counsel
to assist him not in obtaining DNA testing, which he has already obtained, but in having those test
results compared to the statewide DNA database. That request does not fall within the purview of
Chapter 64 and is therefore not reviewable on appeal.” Id. at *6-7.

                                                   2
307 S.W.3d 318, 323 (Tex. Crim. App. 2010); see Tex. R. App. P. 25.2(a)(2) (setting out criminal

defendant’s right to appeal). In essence, the court of criminal appeals determined that an appeal

regarding an order denying the appointment of counsel “is premature” because “a motion for

appointed counsel is a preliminary matter that precedes the initiation of Chapter 64 proceedings.”

Gutierrez, 307 S.W.3d at 323. Further, the court explained that a request for the appointment of

counsel does not compel “the convicted person to” ultimately file a motion for DNA testing, that “a

convicted person may attempt to cure any deficiencies in an initial request for appointed counsel by

filing another request,” and that “there is no limit to the number of requests for appointed counsel

that a convicted person may make.” Id. Accordingly, the court reasoned that “it 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.” Id.; see also Ex parte Gutierrez,

337 S.W.3d 883, 890-95 (Tex. Crim. App. 2011) (addressing issue of denial of counsel after defendant

filed motion for post-conviction DNA testing and after trial court denied request for testing).

               In light of this controlling precedent, we grant the State’s motion and dismiss

Martin’s appeal for lack of jurisdiction.



                                              _________________________________________

                                              David Puryear, Justice

Before Justices Puryear, Pemberton, and Bourland

Dismissed for Want of Jurisdiction

Filed: April 2, 2015

Do Not Publish

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