Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/9/2015 4:11:02 PM JEFFREY D. KYLE Clerk O . 03-14-00499-CV N THIRD COURT OF APPEALS 2/9/2015 4:11:02 PM JEFFREY D. KYLE 03-14-00499-CV AUSTIN, TEXAS *1 ACCEPTED CLERK IN THE COURT OF APPEALS THIRD DISTRICT
AUSTIN, TEXAS ROBERT LEE MARTIN, APPELLANT
VS . THE STATE OF TEXAS, APPELLEE
A PPEAL FROM THE 331 ST J UDICIAL D ISTRICT C OURT T RAVIS C OUNTY , T EXAS AUSE NUMBER 95-5530
STATE’S MOTION TO DISMISS Rosemary Lehmberg District Attorney Travis County, Texas Kathryn A. Scales Assistant District Attorney State Bar No. 00789128 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4810 Kathryn.Scales@traviscountytx.gov AppellateTCDA@traviscountytx.gov ORAL ARGUMENT NOT REQUESTED *2 TABLE OF CONTENTS
TABLE OF CONTENTS...........................................................................................2
TABLE OF AUTHORITIES .....................................................................................3
STATEMENT OF THE CASE..................................................................................5
STATEMENT OF FACTS ........................................................................................5
STATE’S MOTION TO DISMISS ...........................................................................8
PRAYER ..................................................................................................................11
CERTIFICATE OF COMPLIANCE.......................................................................12
CERTIFICATE OF SERVICE ................................................................................12
TABLE OF AUTHORITIES Cases
Gutierrez v. State , 307 S.W.3d 318 (Tex. Crim. App. 2010) ....................................9
Martin v Sicola , No. 03-09-00453-CV, 2010 Tex. App. LEXIS 9544 (Tex. App.—
Austin December 1, 2010)......................................................................................5 Martin v. Quarterman , A-08-CA-732-SS, 2009 U.S. Dist. LEXIS 103735 (W.D.
Tex., August 5, 2009) .........................................................................................6, 7 Martin v. State , 2014 Tex. App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin
Jan. 23, 2014) (mem. op. not designated for publication)............................. 7, 8, 9 Swearingen v. State , 189 S.W.3d 779 (Tex. Crim. App. 2006).................................9
Wolfe v. State , 120 S.W.3d 368 (Tex. Crim. App. 2003) ..........................................9
Statutes
T EX C ODE C RIM . P ROC ., Chapter 64 ..........................................................................7
T EX . C ODE C RIM . P ROC . art. 64.01.............................................................................8
T EX . C ODE RIM . P ROC ., art. 44.02............................................................................8
Rules
T EX . R. A PP . P. 25.2(a)(2) ..........................................................................................8
T EX . R. A PP . P. 25.2(d).............................................................................................10
N O . 03-14-00499-CV IN THE COURT OF APPEALS THIRD DISTRICT
AUSTIN, TEXAS ROBERT LEE MARTIN, APPELLANT
VS . THE STATE OF TEXAS, APPELLEE
A PPEAL FROM THE 331 ST J UDICIAL D ISTRICT C OURT T RAVIS C OUNTY , T EXAS
C AUSE NUMBER 95-5530 STATE’S MOTION TO DISMISS
T O THE H ONORABLE OURT OF A PPEALS :
The State of Texas, by and through the District Attorney for Travis County, respectfully submits this motion to dismiss in response Appellant’s brief.
STATEMENT OF THE CASE In Cause Number 955530, the appellant was charged by indictment with committing the offense of aggravated sexual assault. Martin v. Quarterman , A-08-
CA-732-SS, 2009 U.S. Dist. LEXIS 103735, at *2 (W.D. Tex., August 5, 2009).
On June 4, 2001, the case was called for trial in the 331st District Court, with the
Honorable Judge Bob Perkins presiding. Id . On June 6, 2001, a jury found the
appellant guilty of committing that offense. Id . On June 7, 2001, the jury assessed
his punishment at imprisonment for life plus a fine of $10,000. Id .
On July 6, 2011, Appellant filed a motion for appointment of counsel to assist him in obtaining an order for DNA testing of victim’s “blue panties”
pursuant to T EX . C ODE RIM . P ROC ., Chapter 64. CR 3-15. The Honorable Judge
David Crain, presiding judge of the 331 st District Court of Travis County, Texas
issued an order denying that motion on July 18, 2014. CR 38.
On August 15, 2014, Appellant filed his notice of appeal. CR 56-59. To date, the trial court has not certified Appellant’s right to appeal.
STATEMENT OF FACTS Appellant was convicted by jury of aggravated sexual assault and sentenced to life in prison with a $10,000 fine on June 7, 2001. Martin v Sicola , No. 03-09-
00453-CV, 2010 Tex. App. LEXIS 9544, at *1 (Tex. App.—Austin December 1,
2010). The aggravated sexual assault alleged use of a deadly weapon and the
verdict was guilty as charged. Martin v. Quarterman , A-08-CA-732-SS, 2009 U.S.
Dist. LEXIS 103735, at *2 (W.D. Tex., August 5, 2009).
The complainant, Cherry Nash, testified that she was sitting at a street corner around 6:00 pm. on July 11, 1995 when Appellant approached her, offered her
crack cocaine and accompanied her to a wooded area near some railroad tracks by
a park. Martin v. Quarterman , at *4, *8. Once they were isolated in that wooded
area, Appellant seized Nash by the throat and choked her to near unconsciousness,
produced a knife and forced her to have oral and vaginal sex by threatening her
with the knife. Id. The next day, Nash went to the police with a sketch of Appellant
and then was taken to a hospital for a rape exam. Martin v. Quarterman , at *5. She
testified that Appellant had ejaculated in her and that she had not washed between
the assault and the exam. Martin v. Quarterman , at *7. She later gave a statement
and picked Appellant out of a photo lineup. Id. She identified Appellant at trial.
Martin v. Quarterman , at *5.
The interviewing police officer and the rape exam nurse testified that the injuries on Nash were consistent with her story of being strangled to the ground in
a wooded area. Martin v. Quarterman , at *8, 9. The nurse took vaginal swabbings
from the victim which were preserved. Martin v. Quarterman , at *9. The
supervisor of the Austin Police DNA crime lab testified that the sperm found on
those swabs was consistent with Appellant’s, but that the techniques used in
February, 1995 were not as specific as those available at the time of trial. At
punishment stage, five other women testified that the appellant had assaulted or
attempted to assault them in a similar manner. Martin v. Quarterman , at *13-16.
In an order filed on November 24th, 2009, the trial court granted the appellant’s motion for DNA testing without opposition from the State. Martin v.
State , 2014 Tex. App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23,
2014) (mem. op. not designated for publication). The trial court issued findings of
fact and conclusions of law in April of 2010 reflecting that the testing showed that
the major DNA profile on the vaginal swabs matched the appellant’s DNA and that
those results were not exculpatory. Id. The DNA report stated that the frequency of
occurrence of the major profile in the sample was one in 3.840 quintillion
unrelated persons. Id.
On December 8, 2010, Appellant filed a motion for appointment of counsel to assist him in obtaining an order to search the Texas DNA database. Id . On July
6, 2011 and prior to obtaining a ruling on his December 8, 2010 motion, Appellant
filed another motion for appointment of counsel to assist him in obtaining an order
for DNA testing pursuant to T EX ODE C RIM . P ROC ., Chapter 64. CR 3-15. The
trial court denied Appellant’s December 8, 2010 motion and issued orders to that
effect on November 17, 2011 and December 19, 2011. Martin v. State , 2014 Tex.
App. LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23, 2014) (mem. op.
not designated for publication). The trial court issued an order denying Appellant’s
July 6, 2011 motion on July 18, 2014. CR 38.
STATE’S MOTION TO DISMISS The State respectfully requests that the instant appeal be dismissed, for the following reasons:
I. An order denying appointed counsel is not an "appealable order" under T EX . R.
A PP . P. 25.2(a)(2):
A convicted person may submit to the convicting trial court a motion seeking DNA testing if the motion is accompanied by an affidavit and seeks testing
of biological material not previously tested or subject to newer test techniques that
are reasonably likely to produce more accurate and probative results than the
earlier test. T EX . C ODE C RIM . P ROC . art. 64.01(b). The person seeking testing is
entitled to appointed counsel for a proceeding related to DNA testing if the court
"finds reasonable grounds" for the motion. Id. art. 64.01(c).
The right of a convicted person to appeal is set out in T EX . R. A PP . P. 25.2(a)(2). In pertinent part, Rule 25.2(a)(2) provides that a convicted person has
the right to appeal under T EX . C ODE RIM . P ROC ., art. 44.02 and the appellate rules.
Under Rule 25.2(a)(2), there must be "a judgment of guilt or other appealable
order."
The Texas Court of Criminal Appeals has held that an order denying DNA testing is an "appealable order" under Rule 25.2(a)(2). Swearingen v. State , 189
S.W.3d 779, 781 (Tex. Crim. App. 2006). At the same time, however, the Court of
Criminal Appeals has also held that the decision to deny appointed counsel is not
an "appealable order" under Rule 25.2(a)(2). Gutierrez v. State , 307 S.W.3d 318,
323 (Tex. Crim. App. 2010). That holding was recently highlighted by this Court
in another appeal filed by this very Appellant. See Martin v. State , 2014 Tex. App.
LEXIS 639, 2014 WL 295036 (Tex. App. Austin Jan. 23, 2014) (mem. op. not
designated for publication). In that case, Appellant sought appointed counsel to
assist him not in obtaining DNA testing but in having those test results compared
to the statewide DNA database. After noting that the decision to deny appointed
counsel is, generally speaking, not an "appealable order" under Rule 25.2(a)(2),
this Court then dismissed Martin’s appeal for lack of jurisdiction, holding that the
request did not fall within the purview of Chapter 64 and is therefore not
reviewable on appeal. Martin at *6-7; Cf. Wolfe v. State , 120 S.W.3d 368, 371
(Tex. Crim. App. 2003) (addressing whether, under 2003 version of Article 64.05,
court of appeals had jurisdiction to review trial court's denial of request to appoint
DNA expert).
In the instant case, Appellant has once again filed an appeal of an order that the Appellate Court lacks jurisdiction to review. State would, therefore,
respectfully request that Appellant’s appeal be dismissed.
II. The trial court has not certified that Appellant has the right to appeal:
Rule 25.2(d) of the Texas Rules of Appellate Procedure provides as follows: Certification of Defendant's Right of Appeal. --If the defendant is the appellant, the record must include the trial court's certification of the defendant's right of appeal under Rule 25.2(a)(2). The certification shall include a notice that the defendant has been informed of his rights concerning an appeal, as well as any right to file a pro se petition for discretionary review. This notification shall be signed by the defendant, with a copy given to him. The certification should be part of the record when notice is filed, but may be added by timely amendment or supplementation under this rule or Rule 34.5(c)(1) or Rule 37.1 or by order of the appellate court under Rule 34.5(c)(2). The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made part of the record under these rules .
T EX . R. A PP . P. 25.2(d) (emphasis added).
In the case at bar, the trial court has not issued an order certifying Appellant’s right to appeal its July 18, 2014 order. Consequently, Appellant’s
appeal “must be dismissed.” T EX . R. A PP . P. 25.2(d).
PRAYER WHEREFORE, the State requests that the Court dismiss the instant appeal. Respectfully submitted, Rosemary Lehmberg District Attorney Travis County /s/ Kathryn A. Scales Kathryn A. Scales Assistant District Attorney State Bar No. 00789128 P.O. Box 1748 Austin, Texas 78767 (512) 854-9400 Fax No. (512) 854-4810 Kathryn.Scales@traviscountytx.gov AppellateTCDA@traviscountytx.gov *12 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies that the length of this response is 1,451 words, which is within the limits imposed
by the Rule. The State also certifies, pursuant to Texas Rule of Appellate
Procedure 9.4(e), that a conventional 14-point typeface was used to generate this
brief.
/s/ Kathryn A. Scales Kathryn A. Scales CERTIFICATE OF SERVICE I hereby certify that, on the 9 th day of February, 2015, the foregoing State’s brief was sent, via U.S. mail, electronic mail, facsimile, or electronically through
the electronic filing manager, to Appellant, Robert Lee Martin #1050629 at The
Clements Unit, 9601 Spur 591, Amarillo, Texas 79107-9606.
/s/ Kathryn A. Scales Kathryn A. Scales