Nicholas D. Williams v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 24, 2023
• Docket: 08-23-00046-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

NICHOLAS D. WILLIAMS, § No. 08-23-00046-CR

Appellant, § Appeal from the

v. § 390th Judicial District Court

THE STATE OF TEXAS, § of Travis County, Texas

Appellee. § (TC# D-1-DC-12-904084)

MEMORANDUM OPINION

Pursuant to a plea-bargain agreement, Appellant Nicholas Williams pleaded guilty to a

first-degree felony charge of murder and a judgment of conviction was rendered against him by

the 390th District Court of Travis County, Texas. 1 See TEX. PENAL CODE ANN. § 19.02. The

district court imposed a sentence of confinement for forty years’ in the Texas Department of

Criminal Justice. Appellant does not challenge his conviction or sentence, but instead, this appeal

concerns a post-conviction motion under Chapter 64 of the Code of Criminal Procedure. In a single

issue, Appellant contends the trial court erred in denying his motion for appointment of counsel to

seek post-conviction DNA testing. We conclude we lack jurisdiction because (1) Appellant has

1 This case was transferred from the Third Court of Appeals pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the Third Court of Appeals to the extent it might conflict with our own. See TEX. R. APP. P. 41.3. not perfected his appeal, and (2) an order denying a motion to appoint counsel under Chapter 64

is not an immediately appealable order. Accordingly, we dismiss the appeal.

I. BACKGROUND

Appellant pleaded guilty pursuant to a plea-bargain in 2012. As part of his plea-bargain

agreement, Appellant waived his right to an appeal. In 2017, Appellant sought and was denied a

writ of habeas corpus from the Court of Criminal Appeals of Texas.

On October 21, 2022, Appellant filed a pro se motion for appointment of counsel under

Chapter 64 of the Code of Criminal Procedure, which provides for post-conviction DNA testing.

See generally, TEX. CODE CRIM. PROC. arts. 64.01–.05. Appellant did not expressly request DNA

testing in his motion, but rather, alleged he was entitled to appointed counsel before filing any such

motion.

On November 1, 2022, the trial court entered an order finding both that Appellant had not

established reasonable grounds for post-conviction DNA testing, nor established he was entitled

to appointment of counsel. 2 Appellant filed his pro se notice of appeal on November 22, 2022.

II. DISCUSSION

A. Perfecting a Chapter Sixty-Four Appeal

A criminal defendant has the right of an appeal under Code of Criminal Procedure Article

44.02 and the Rules of Appellate Procedure. TEX. CODE CRIM. PROC. art. 44.02. Chapter 64 of the

Code of Criminal Appeals establishes the procedure for a convicted person to obtain post-

2 The written order indicates the motion for appointment of counsel came to be considered on October 20, 2022, but it is file stamped November 1, 2022. No date appears near the trial court’s signature. Appellant’s notice of appeal references the “October 20, 2022” order. We refer to the file-stamp date because Appellant’s motion, sent by mail and postmarked October 13, 2022, was not file stamped as received until October 21, 2022.

2 conviction DNA testing. See generally, TEX. CODE CRIM. PROC. arts. 64.01–.05. Chapter 64.05

provides that an appeal under Chapter 64 should be made “in the same manner as an appeal of any

other criminal matter.” Id. art 64.05; see Swearingen v. State, 189 S.W.3d 779, 780–81 (Tex. Crim.

App. 2006) (distinguishing between capital cases and normal criminal appeals under Chapter 46

for purposes of direct appeals to the CCA). Thus, an appeal of a proceeding under Chapter 64 must

comply with the Rules of Appellate Procedure.

Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure requires the trial court to enter

its certification of a defendant’s right of appeal each time it enters a judgment of guilt or other

appealable order. TEX. R. APP. P. 25.2(a)(2). In a plea-bargain case, a defendant may appeal only

those matters raised by written motion and ruled on before the trial court, or after receiving the

trial court’s permission to appeal. TEX. R. APP. P. 25.2(a)(2)(A), (B); see Chavez v. State, 183

S.W.3d 675, 680 (Tex. Crim. App. 2006) (noting that intermediate appellate courts have

jurisdiction to ascertain whether an appellant who pleaded guilty is permitted to appeal under Rule

25.2(a)(2), but must dismiss a prohibited appeal without further action); see also Tedford v. State,

No. 08-21-00003-CR, 2021 WL 717603, at *1 (Tex. App.—El Paso Feb 24, 2021, no pet.) (mem.

op., not designated for publication).

The trial court’s initial certification in this case states the case is “a plea-bargain case, and

the defendant has NO right of appeal.” The certification is dated October 15, 2012, and was signed

by both Appellant and his counsel. There is no certification in the record relating to any of the

post-conviction proceedings. Accordingly, we lack jurisdiction to consider the denial of

Appellant’s post-conviction motion.

3 B. Appointed Counsel Under Chapter Sixty-Four

Although the lack of certification alone precludes our consideration of Appellant’s issue,

we note for the sake of clarity that the order at issue is not an immediately appealable order. The

procedure for a convicted person to obtain post-conviction DNA testing includes a limited right to

appointed counsel to pursue testing. See TEX. CODE CRIM. PROC. art. 64.01(c). The appointment

of counsel is conditioned on three criteria: (1) the convicting person must inform the convicting

court that such person wishes to submit a motion for DNA testing; (2) the convicting court must

find that “reasonable grounds” exist for filing a DNA motion; and (3) the convicted person must

be indigent. Id.; Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (finding that

entitlement to appointed counsel in a Chapter 64 post-conviction DNA proceeding “is not

absolute”).

Although an order denying DNA testing is an appealable order under article 64.05, a trial

court’s decision to deny a request for appointed counsel to assist in filing a motion for post-

conviction DNA testing is not an “immediately appealable” order. Gutierrez, 307 S.W.3d at 322–

23 (noting that an appealable issue is not always immediately appealable and that interlocutory

appeals are rarely permitted); Whitfield v. State, 430 S.W.3d 405, 408 n. 11 (Tex. Crim. App.

2014); Joseph v. State, No. 03-17-00006-CR, 2017 WL 637239 (Tex. App.—Austin Feb. 3, 2017,

no pet.) (mem. op., not designated for publication). The decision to appoint counsel is a

“preliminary decision that is appropriately reviewed as alleged error after a motion for DNA testing

is denied.” Whitfield, 430 S.W.3d at 408 n. 11.

Here, Appellant filed a motion to appoint counsel under Chapter 64 requesting only that

relief. Appellant did not file a motion seeking DNA testing, and he specifically alleged in his

motion that he was entitled to counsel before filing such a motion. Appellant’s appeal is premature;

4 “a motion for appointed counsel is a preliminary matter that precedes the initiation of Chapter 64

proceedings.” 3 Gutierrez, 307 S.W.3d at 323 (“At this stage, a convicted person has only

contemplated the filing of a motion for DNA testing.”). Accordingly, we lack jurisdiction to

consider Appellant’s claim that the trial court erred in denying his motion to appoint counsel.

III. CONCLUSION

We conclude we lack jurisdiction in this appeal because (1) there is no certification of

Appellant’s right to appeal his post-conviction order, and (2) because the order denying

appointment of counsel is not an immediately appealable order under Rule 25.2(a)(2).

TEX. R. APP. P. 25.2(a)(2). Therefore, we dismiss this appeal.

GINA M. PALAFOX, Justice

February 24, 2023

Before Rodriguez, C.J., Palafox, and Soto, JJ.

(Do Not Publish)

3 Although Appellant’s appeal is premature, we note that our opinion does not preclude Appellant from filing a motion for DNA testing or additional motions for the appointment of counsel. As the Court of Criminal Appeals has noted: “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. Gutierrez, 307 S.W.3d 323.