Eustorgio Guzman Resendez v. State

• Court: Court of Appeals of Texas
• Decided: August 1, 2018
• Docket: 04-18-00316-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-18-00316-CR

Eustorgio Guzman RESENDEZ, Appellant

v.

The STATE of Texas, Appellee

From the 229th Judicial District Court, Starr County, Texas Trial Court No. 91-CR-43-B Honorable Gilberto Hinojosa, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: August 1, 2018

DISMISSED FOR LACK OF JURISDICTION

Appellant Eustorgio Guzman Resendez challenges the trial court’s “failure to appoint

counsel under Texas Code of Criminal Procedure chapter 64.01(c) and failure … to rule on DNA

Motion.” Because the clerk’s record does not contain a final appealable order, we ordered

appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant

did not respond.

Article 64.01 provides for an appeal only of a finding under article 64.03 or 64.04 of the

Code of Criminal Procedure (relating to an order for forensic testing and whether the results are 04-18-00316-CR

favorable to the convicted person). TEX. CODE CRIM. PROC. ANN. art. 64.05 (West 2018). There

is no provision for a direct appeal of the trial court’s failure to appoint counsel. See Winters v.

Presiding Judge of Crim. Dist. Ct. No. Three of Tarrant Cty., 118 S.W.3d 773, 774 (Tex. Crim.

App. 2003); Neveu v. Culver, 105 S.W.3d 641, 642-43 (Tex. Crim. App. 2003); Fry v. State, 112

S.W.3d 611, 613 (Tex. App.—Fort Worth 2003, pet. ref’d). Thus, there is no appealable order

before this court, and we have no jurisdiction to consider the appeal. See Fry, 112 S.W.3d at 613;

McIntosh v. State, 110 S.W.3d 51, 52-53 (Tex. App.—Waco 2002, no pet.). Accordingly, we

dismiss this appeal for lack of jurisdiction.

DO NOT PUBLISH

-2-