             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. PD-1490-14



                            REGINALD D. DAVIS, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE SECOND COURT OF APPEALS
                          TARRANT COUNTY

               A LCALA, J., filed a statement concurring to the order refusing appellant’s
petition for discretionary review, in which J OHNSON, H ERVEY, and N EWELL, JJ., joined.

                              CONCURRING STATEMENT

       The pro se petition for discretionary review filed by Reginald D. Davis, appellant,

argues that, because he did not receive timely notice of the trial court’s order denying his

motion for post-conviction DNA testing, his notice of appeal could not be filed within the

period of time permitted under Rule 26.2, and, therefore, he is being denied access to the

courts in violation of the Texas Constitution. See T EX. R. A PP. P. 26.2(a); T EX. C ONST. art.

I, § 13. Although it may appear at first glance that appellant is without a remedy, I observe
                                                                             Davis Concur -- 2

that he is not precluded from filing another motion for DNA testing even if his appeal has

been dismissed on jurisdictional grounds, as here. See T EX. C ODE C RIM. P ROC. arts. 64.01(a-

1), 64.03; Ex parte Baker, 185 S.W.3d 894, 897 (Tex. Crim. App. 2006) (observing that

“Chapter 64 does not prohibit a second, or successive, motion for forensic DNA testing”).

If he chooses to pursue this option, appellant would then be free to appeal any subsequent

denial of his motion within thirty days after the date upon which the trial court enters such

an appealable order. See T EX. R. A PP. P. 26.2(a); T EX. C ODE C RIM. P ROC. art. 64.05. Thus

the solution, albeit an imperfect one, appears to be for appellant to simply start the entire

process over again and obtain appellate review in a future proceeding. See McCain v. State,

No. 02-13-00459-CR, 2013 WL 6157123 (Tex. App.—Fort Worth Nov. 21, 2013) (not

designated for publication) (Dauphinot, J., concurring) (addressing identical situation and

concluding that “the filing of a subsequent motion for DNA testing of evidence meeting

Article 64.01’s requirements would seem to be the only remedial step available to Appellant

and other unrepresented inmates who complain that a breakdown in the system rather than

their own acts or omissions prevented the timely filing of a notice of appeal from the denial

of postconviction DNA testing”).

       More generally, I observe that this situation appears likely to repeat itself given that

many individuals seeking post-conviction DNA testing are, like appellant, incarcerated and

unrepresented by counsel, and given that orders in Chapter 64 proceedings are routinely

issued outside the defendant’s presence. In light of those factors, I would urge this Court to
                                                                             Davis Concur -- 3

consider amending the Rules of Appellate Procedure so that, in situations involving

appealable orders under Chapter 64, the appellate timetables run from the date upon which

a defendant receives notice or acquires actual knowledge of such an order, as opposed to the

date upon which the trial court enters the order. Compare T EX. R. A PP. P. 26.2(a) (criminal

rule of appellate procedure requiring that defendant’s notice of appeal be filed within thirty

days after date upon which trial court enters appealable order), with T EX. R. A PP. P. 4.2(a)

(civil rule of appellate procedure providing for extended appellate timetables when party has

not received timely notice of trial court’s appealable order ). Such a change to the criminal

rules of appellate procedure, limited to the context of Chapter 64 proceedings, would ensure

that pro se defendants are able to exercise their right to appeal the denial of post-conviction

DNA testing and would promote judicial economy by resolving such matters in a single

proceeding rather than encouraging successive filings.

       With these comments, I concur in the Court’s refusal of appellant’s petition for

discretionary review.

Filed: March 18, 2015

Do Not Publish
