### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00498
- CR

The State of Texas, Appellant

v. Irwin Pentland, Appellee

FROM THE 427TH DISTR ICT COURT OF TRAVIS COUNTY NO. D
- 1
- DC
- 17
- 904036 , THE HONORABLE TAMA RA NEEDLES, JUDGE PR ESIDING

M E M O R A N D U M O P I N I O N

Chapter 64 of the Texas Code of Criminal Procedure establishes the procedures for a convicted person to obtain post

- conviction DNA testing. Under the statute, an indigent convicted person intending to file a motion for post

- conviction DNA testing has a limited right to appointed counsel to pursue DNA testing. S ee Tex. Code Crim. P roc. art. 64.01(c) ; Gutierrez

v
. State , 307 S.W.3d 318, 321 (Tex. Crim. App. 2010)

. In this appeal , t he St a te seeks to appeal
the trial court ’s order denying the S tat e ’s motion to vacate the trial court’s order appointing
counsel in a Chapter 64 proceeding

. W e dismiss the ap peal for want of jurisdiction

.

PR O CED U R AL BACKGROUND
A ppellee Irwin Pentl and was convicted of capit al murder and filed a ti mely notice of appeal. O ne year later, while the appeal was pending, Pentland filed a pro se motion

r equesting the appointment of c o unsel to pursue DNA testing under Chapter 64

. T he State filed2

a response , opposing th e appo i ntment of counsel b ecause , the State contended, Pent land ’s request for counsel to pursue D NA testing should not be hear d while the appeal of his conviction was pending

. See Tex. R. App. P. 25.2(g) ( suspending all further proceedings in trial court o nce
ap pellate record has been f iled until trial court receives appellate

- court mandate “ except as provided otherwise by law ” or by appellate rules )

. Pentland filed a pro s e response, asserting
that proceedings under Chap ter 64 are an exception to the suspensio n of trial court pro ceedin gs under Rule 25.2 , and again request ed t h e appointment of counsel. T he trial court signed an order appointing an attorne y to assist Pentland in pursuing D NA testing under Chapter 64

.

T he State fi led a motion seeking reconsidera tion of the trial c ourt’s order

appo inting counsel

. T he t rial court conduc ted a hear ing on the motion and, f ollowi n g the hearing, signed an order indicating that it “ [ did ] not vacate ” its prior order appoi nti ng an attorney
for Pentland , implicitly denying the State ’ s m otion to va c ate the previously entered order

. 1 T he
State filed a notice of appeal of the tria l court ’s order denying the St a te ’s motion to vacate the

court ’s previously enter ed order appointing counsel under Chapter 64

.

DISCUSSION
T he State asserts in its notice of appe al that it appeals the trial court ’s
order denying the State ’s motion to vacate pursuant to Ar ticle 44 .01(a)(6) of the Code of
Crimina l Procedure

.

According to the R ules of A ppell ate P rocedure, “The State is entitled to appeal a
court’s order in a criminal case as p r o vided by Code of Criminal Pro cedure article 44.01.” Tex.
R. App. P. 25.2(a)( 1 )

. Under A rticle 44.01 (a)(6) , “The state is entitled to appeal an or d er of a

1 The record reflects that pri o r to the hearing, appointed counsel f or Pentland filed a motion for DNA testing on Pent land ’ s behalf

.3

court in a criminal case if the orde r is issued under Chapter 64. ” Tex. Code C rim. Proc.

art. 44.0 1 (a)( 6 ) ; see Kutzner v. State , 75 S.W.3d 427, 431 (Tex. Crim. App. 2002) (holding that Chapter 64 DNA proceeding is “crim inal case” for purposes of a ppeal ) ; see also Te x. Code
Crim. Proc. art. 64.05 (provi din g that in noncapital cases “ an appeal under [ Cha pter 64 ] is to a court of appeals in t he same manner as a n appeal of any other criminal matter ” ).

The entitlement to appointed counsel in a Chapter 64 proceeding is n ot absolute;
it is conditioned on three statutory criteria

. Gutier r ez , 307 S.W.3d at 321 . I f the statutory

c riteria are met, the convicting court “ shall appoint counsel for the convicted person

. ” Tex. Code
Crim. Proc. art. 44.0 1 ( c )

. T hus, a trial c o urt ’s order appointing counsel is an order “iss ued under Chapter 64

. ” Even so , whether s uch an order, which addresses a preliminary matter in a Chapter
64 proceeding , is an order that the Sta te may appeal under article 44.01 ( a ) (6) i s not clear

. 2
However, even assuming that a trial c o urt ’s order appointi n g counsel in a Cha p t er 64 proceeding is an appealable order, t he order that the St ate seeks to appeal here i s not such an order

. The
order b eing appealed in this case did not appoint counsel for P entland to assist him in pursu ing DNA testing but r ather d enied the State ’ s m o t io n seeking reconsideration of the trial court ’s

2 The Court of Crimi nal Appeals has re c o gnized that the text of article 64.05 , which speaks only of procedures and does not address the subs t ance of w hat may be appealed , does not prov ide clear guidance of wha t may be appealed in a Chapter 64 proceeding

. W hitfield v. State , 430 S.W.3d 405, 40 8 (Tex. C rim. App. 2014)

. Concerning the appoint ment of counsel in a C h apter 64 proceeding , t he Cou rt of Criminal Appeals has conclude d that the decision to deny appointe d counsel is not an “appealable order” under Rule 25.2(a)(2) , expla in ing that : [s] uch an appea l is premature; a motion for appointe d counse l is a preliminary matter that pre cedes the in itiation of Chapter 64 proceedings. At this stage, a convicted person has only contemplated the filing of a motion for DNA testing. A re quest for appointe d counsel in no way legally binds the convicte d person to file a motion for DNA testing. A convicte d person m ay always opt to decline to pursue DNA testing, even after co nsulting with counsel.
Gutierrez v . State , 307 S.W.3d 318, 321 (Te x. Crim. App. 2010 ) (intern al citation omitted)

.4

order appoint ing cou nsel

. The Court of Criminal Appea ls has recognized that “[t] he right of the State to request, and the right of the trial court to reconsider, rulings are di stinct fr om th e State ’ s
limi t e d right to appeal court orders granted by Article 44.01. ” State v. C owsert , 207 S.W.3d 347, 351 (Tex. Crim. App. 2006)

.

Even i f the tria l court ’ s order appointing counsel in a Chapter 64 proceeding is an
appe al a b l e order under artic le 44 .01, w e find n o authority f or the State to appeal an order denying reconsideration of such an order

. See , e.g. , Cowsert , 207 S.W.3d at 351 (h olding that
motion fo r reconsideration was “simply not ” motion to suppress that State could app e al unde r

art icle 4 4.01)

. The st a n dard for determining appellate jurisdiction “ is not whether the appeal is precluded by law, b ut whether the appeal is authorized by law

. ” State v. Robins o n , 498 S.W.3d 914 , 917 (Tex. Crim. App. 20 16) ( quoting Abbott v. State , 271 S.W .3d 69 4, 696

– 97 (Tex

. Crim. App. 2008) )

. Finding no authority for the St a te to appeal an order denying reconsideration of an order

“ issued under Cha pter 64 , ” w e conclude that we do not have jurisdiction over thi s appeal. 3

3 Moreover , t he State may not appeal later than the 20 th day after the date on whic h the order to be appealed is entered by the court. See Tex. Code Crim. Proc. art 44.01(d) ; Tex. R. App. P. 26 .2(b)

. T he record reflects th a t the State’s motion to vacate was filed forty

- eight days after the trial court signed the order app ointing counse l to Pentland

— twenty

- eight days after the deadline for filing a notice of appeal concerning the a ppointment of counsel

.

“ Article 44.01( d) is more than a mere procedural fi ling deadline; it is a su bstantive limit on the State ’ s authority to appeal. ” State v. Cowsert , 207 S.W.3d 347, 352 (Tex. Crim. App. 200 6) ( citing State v. Muller , 829 S.W.2d 805, 812 (Tex. Crim. App. 1992) ) ; accord S tate v. Demaret , 764 S.W.2d 857, 858 (Tex. App.

— Austin 1989, no pet.)

. Under article 44 .01(d), o n the 21st day following entry of a trial court’s appealable order, “ the St ate ’ s authority to appeal under the statute ceases to exist, and [an appellate ] court may n o t revive that right.” Cowsert , 207 S. W .3d at 352 (quoting M u ller , 82 9 S.W.2d at 812 ).
A llowing the St ate to appeal an order denying reconsideration of an appealable order

— as the State attempt s to do here (if an order appointing counsel is appealable)

— wo u ld , in effect, resurr ect the State ’s right to appeal an appealable order after the right to appeal had expired

. If such resurrection is allowed , the re wou l d be effectively no limit on the State ’ s right to appeal ;5 C ONCLUSION
Because w e find no a uthori ty for the S t a te to appeal the trial court ’ s order denying
the State ’ s motion to v acate the trial court ’ s previous ly entered order appointing coun sel in a Chapter 64 proceeding , we conclud e that we lack jurisdiction over this appeal

. Accordingly , w e dismi ss th e app ea l for want of jurisdiction

.

___________________ _______________________ Edward Smith , Justice
Before C hief Justice Rose, Justi ces T r iana a n d Smith
Dismissed for W ant of Jurisdiction
Filed : August 28, 2019
Do Not Publish

the State wo uld need only ask the trial c o urt to reconsider it s ruling or vacate an order to “res et” the twe nty

- day clock. See id. “ To allow such a reset would re n der ineffective the time l imit for appeal set out in Article 44.01(d) and Rule 26.2, in violati on of th e Code Construction Act which states, ‘ it is presumed that

. . . the entire statute is intended to be effective. ’ ” Id. (citing Tex. Gov ’ t Code § 311.02 ).