Opinion
NO. 14-16-00352-CR
04-25-2017
ALFREDO URETEGA GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court Harris County, Texas
Trial Court Cause No. 686001
ORDER
Appellant appeals the denial of his motion for DNA testing. Appellant is not represented by counsel. On October 27, 2016, this court abated this appeal and directed the trial court to determine whether appellant intended to pursue the appeal and whether he was entitled to appointment of counsel. On February 3, 2017, after holding the requested hearing, the trial court notified this court that appellant wished to pursue his appeal and was in the process of hiring an attorney to assist with his appeal. This court set a due date of March 6, 2017 for appellant's brief to be filed. When no brief was filed, this court notified appellant that his brief was late. Appellant has filed no response.
Rule 38.8 provides that we will not dismiss or consider the appeal without briefs unless it is shown the appellant no longer desires to prosecute his appeal or that he is not indigent and has failed to make necessary arrangements for filing a brief. Tex. R. App. P. 38.8. It is clear that the rule was designed to protect an indigent appellant from the failure of his appointed counsel to provide a brief. The rule further provides that under appropriate circumstances, "the appellate court may consider the appeal without briefs, as justice may require." Tex. R. App. P. 38.8 (b)(4).
In an appeal from the denial of a motion for DNA testing an appellant is not entitled to counsel unless reasonable grounds exist for the filing of the motion. Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011). Because appellant has not shown he is entitled to counsel, we reinstate the appeal and issue the following order.
We ORDER appellant to file a brief in this appeal on or before May 25, 2017. If appellant fails to file his brief as ordered, we will decide this appeal upon the record before the court. See Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App. 1994) (affirming conviction on record alone where appellant failed to file a pro se brief after being properly admonished); Coleman v. State, 774 S.W.2d 736, 738-39 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (holding that former rule 74(l)(2) (now Rule 38.8(b)) permitted an appeal to be considered without briefs "as justice may require" when a pro se appellant has not complied with the rules of appellate procedure).
PER CURIAM