Affirmed and Memorandum Opinion filed February 21, 2019.




                                      In The

                      Fourteenth Court of Appeals

                               NO. 14-18-00157-CR

               ARTHUR CHRISTOPHER TATUM, Appellant

                                        V.
                        THE STATE OF TEXAS, Appellee

                      On Appeal from the 228th District Court
                              Harris County, Texas
                          Trial Court Cause No. 271613

                 MEMORANDUM                     OPINION


      Appellant appeals the denial of his Motion for Post-Conviction DNA Testing.
Appellant requested appointment of counsel on appeal. On June 7, 2018, this court
abated the appeal and ordered the trial court to determine whether appellant was
entitled to appointment of counsel under Ex parte Gutierrez, 337 S.W.3d 883, 891–
92 (Tex. Crim. App. 2011). Pursuant to this court’s order, the trial court made the
following findings:
      The Court having reviewed the post-conviction request for DNA testing
      and court-appointed counsel denied the request for the following
      reason:
      The Appellant, Arthur Christopher Tatum, did not set out any fact or
      allegations to support a finding that DNA testing and appointment of
      an attorney are reasonable.
      THEREFORE, the Court finds that reasonable grounds do not exist for
      the filing of Appellant’s motion.
After receiving the trial court’s findings this court reinstated the appeal and set
appellant’s brief due July 23, 2018. On August 14, 2018, this court issued an order
explaining that the trial court already had conducted a hearing to determine whether
appellant was entitled to counsel. Because the trial court held a hearing and appellant
had not filed a brief, this court ordered appellant to file a brief on or before
September 12, 2018. We explained that if appellant failed to file his brief as ordered
we would decide the appeal on the record before the court. See Tex. R. App. P.
38.8(b)(4). No brief was filed.

      Therefore, we have considered the appeal without briefs and have searched
the record for “fundamental” error. See Lott v. State, 874 S.W.2d 687, 688 (Tex.
Crim. App. 1994). The Court of Criminal Appeals recently addressed whether the
doctrine of fundamental error and reiterated that it “had already rejected the idea that
‘fundamental error,’ as a freestanding doctrine of error-preservation, exists
independently from” the categorized approach the court set out in Marin v. State,
851 S.W.2d 275 (Tex. Crim. App. 1993). Proenza v. State, 541 S.W.3d 786, 793
(Tex. Crim. App. 2017).

      In Proenza, the court stated: “In Marin, we described the Texas criminal
adjudicatory system as containing error-preservation ‘rules of three distinct kinds:
(1) absolute requirements and prohibitions; (2) rights of litigants which must be
implemented by the system unless expressly waived; and (3) rights of litigants which

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are to be implemented upon request.’” 541 S.W.3d at 792 (quoting Marin, 851
S.W.2d at 279). The high court “referred to these separate classifications as
category-one, -two, and -three Marin rights, respectively.” Id. If an alleged error
falls into one of the first two Marin categories—if it involves (1) a violation of an
absolute systemic requirement, or (2) a violation of a right that is waivable only—
the error may be raised for the first time on appeal. See id. All other complaints
involve category-three rights that are forfeited unless preserved. See Loge v. State,
550 S.W.3d 366, 377–78 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

       On the basis of the trial court’s findings, this court has considered the appeal
without briefs. See Tex. R. App. P. 38.8(b). We find no violation of an absolute
systemic requirement or of a right that is waivable only. See Marin, 851 S.W.2d at
279.

       Accordingly, the judgment of the trial court is affirmed.



                                        PER CURIAM


Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
Do Not Publish — Tex. R. App. P. 47.2(b).




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