Gregory Michael Klapesky v. State

Opinion

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)