Donald Aekins v. State
03-15-00669-CR
| Tex. App. | Jul 15, 2016Background
- Donald Aekins filed a Chapter 64 motion in Travis County seeking post-conviction DNA testing; the district court denied the motion on January 26, 2015.
- Aekins later filed a motion for appointment of counsel to appeal that denial; the district court denied that motion on May 26, 2015.
- Aekins filed a notice of appeal on October 16, 2015 purporting to appeal the denial of appointed counsel; he did not file any separate notice of appeal from the January 26 order denying DNA testing.
- Chapter 64 appeals are governed by the Texas Rules of Appellate Procedure and must be initiated by filing a notice of appeal within 30 days of the appealable order.
- The appealable order in a Chapter 64 proceeding is the order denying DNA testing; an order denying appointment of counsel is not separately appealable.
- Because no timely notice of appeal from the January 26 denial of DNA testing was filed, the Court of Appeals dismissed the appeal for want of jurisdiction.
Issues
| Issue | Aekins' Argument | State's Argument | Held |
|---|---|---|---|
| Whether the denial of appointment of counsel is a separately appealable order from the Chapter 64 denial | Aekins implicitly treated the denial of appointed counsel as the subject of his appeal (filed Oct. 16) | The denial of appointment is not a separate appealable order; the appealable order is the denial of DNA testing | Denial of appointment of counsel is not separately appealable; appeal must be from the January 26 DNA denial |
| Whether Aekins' notice of appeal was timely as to the denial of DNA testing | Aekins' October 16 notice could be construed broadly to include the January 26 DNA denial | The appellate timetable ran from Jan. 26; notices must be filed within 30 days, and Oct. 16 is untimely | Notice of appeal was untimely as to the Jan. 26 order; appeal dismissed for lack of jurisdiction |
Key Cases Cited
- Gutierrez v. State, 307 S.W.3d 318 (Tex. Crim. App. 2010) (Chapter 64 procedures and appealability principles)
- Swearingen v. State, 189 S.W.3d 779 (Tex. Crim. App. 2006) (appealable order in Chapter 64 is denial of DNA testing; appellate timetable runs from that date)
- Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App. 1998) (standards on appellate jurisdiction and timeliness)
- Olivo v. State, 918 S.W.2d 519 (Tex. Crim. App. 1996) (rules on jurisdictional requirements for appeals)