Opinion
No. 10-20-00034-CR
01-20-2021
ALLAN LATOI STORY, Appellant v. THE STATE OF TEXAS, Appellee
From the 19th District Court McLennan County, Texas
Trial Court No. 2011-2499-C1
THIRD ABATEMENT ORDER
This is an appeal from the trial court's January 6, 2020 order denying Allan Latoi Story's motion for post-conviction DNA testing under Chapter 64 of the Code of Criminal Procedure. We abated this cause to the trial court for the parties to create a record that is capable of being reviewed. See Asberry v. State, 507 S.W.3d 227, 228-29 (Tex. 2016). A clerk's record was thereafter filed on May 5, 2020, and supplemental clerk's records were filed on April 14, 2020, and July 6, 2020. A reporter's record was filed on July 10, 2020. Accordingly, this appeal is reinstated.
While this cause was abated, Story filed several documents. We have reviewed the documents filed by Story and the status of this appeal and issue the following orders:
Service of Documents
Several of the documents filed by Story do not contain proper proof of service. A filing party is required to serve a copy of all documents presented to the Court on all parties to the appeal. TEX. R. APP. P. 9.5(a). Service on a party represented by counsel must be made on that party's lead counsel. Id. The documents must contain proof of service. Id. at 9.5(d). Proof of service may be in the form of either an acknowledgement of service by the person served or a certificate of service. Id. A certificate of service must be signed by the person who made the service, and must state (1) the date and manner of service, (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney. Id. at 9.5(e).
To expedite this matter, we implement Rule of Appellate Procedure 2 to suspend Rule of Appellate Procedure 9.5's proof-of-service requirement for the documents that Story filed. See id. at 2, 9.5. The documents have been posted to the Court's website so that the State may have access to them. We decline, however, to implement Rule 2 to suspend Rule 9.5's service requirements for Story's future filings in this appeal. All future filings by Story shall comply with Rule 9.5.
Appointment of Counsel
A convicted person has a limited, statutory right to appointed counsel during a Chapter 64 proceeding. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c); Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010). Specifically, article 64.01(c) provides that a convicted person is entitled to counsel during a Chapter 64 proceeding when the person informs the court that he wishes to submit a motion for forensic DNA testing, the court finds reasonable grounds for a motion to be filed, and the court determines that the convicted person is indigent. TEX. CODE CRIM. PROC. ANN. art. 64.01(c). Article 64.01(c) does not differentiate between the trial and appellate stages. Gray v. State, 69 S.W.3d 835, 837 (Tex. App.—Waco 2002, order) (per curiam).
Here, the trial court denied Story's motion for appointment of counsel. We see no reason to believe that the trial court would view the issue of Story's entitlement to counsel any differently now than previously. See In re King, No. 03-17-00484-CR, 2018 WL 699326, at *1 (Tex. App.—Austin Feb. 1, 2018, order) (per curiam, not designated for publication) (declining to remand for appointment of counsel and denying motion to abate). Furthermore, we conclude that at this point, Story has not established to us his entitlement to the appointment of appellate counsel in this appeal. See Aekins v. State, No. 07-15-00139-CR, 2015 WL 6082312, at *1-2 (Tex. App.—Amarillo Oct. 15, 2015, order) (per curiam, not designated for publication) (denying request to remand for appointment of counsel and declining to order appointment of counsel). Article 1.051 of the Code of Criminal Procedure has no application in this Chapter 64 proceeding. See id. at *2 (citing Cloud v. State, Nos. 05-07-01414-CR & 05-07-01415-CR, 2008 WL 3020817, at * 1 (Tex. App.—Dallas Aug. 6, 2008, pet. ref'd) (not designated for publication)).
Appellate Record
Story filed a "Motion for Court's Record" with the trial court clerk on August 5, 2020. In the motion, Story seeks to obtain a free copy of the appellate record in this appeal to prepare the appellant's brief.
We therefore abate this cause to the trial court. The trial court is ordered to consider Story's "Motion for Court's Record" in light of Rules of Appellate Procedure 20.2, 34.5(g), and 34.6(h) within 21 days of the date of this Order. The trial court clerk is ordered to then file a supplemental clerk's record containing the trial court's order on Story's "Motion for Court's Record" within 35 days of the date of this Order. If the trial court conducts a hearing on Story's "Motion for Court's Record," the court reporter is ordered to also file a supplemental reporter's record of the hearing within 35 days of the date of this Order.
In the meantime, Story's "Motion for Clerk's Record," filed in this Court on June 29, 2020, and his "Motion for Record," filed in this Court on July 29, 2020, remain pending.
Appellant's Brief
This Court's April 17, 2020 abatement order stated that the appellant's brief in this appeal would be due 30 days after this Court had received both the clerk's record and reporter's record and had reinstated this appeal. However, in light of the foregoing, the appellant's brief will not be due until 30 days after the trial court considers Story's "Motion for Court's Record" and this appeal is again reinstated.
Story's "Motion for Extension of Time," filed in this Court on July 29, 2020, is dismissed as moot.
PER CURIAM Before Chief Justice Gray, Justice Neill, and Justice Johnson
Order issued and filed January 20, 2021
RWR