### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00769- CR

In re Manuel G arcia, Appellant

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 200 7-2 42, H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

O P I N I O N
Appellant Manuel Gar cia pleade d g uilty to sexual assault of a child. See Tex. Penal Code Ann. § 22.011(a) (2) (West 2011). He entere d his plea pursuant to a plea a g ree ment, and on April 1, 2008, following a punishment hear ing, the trial court adjudg ed Gar cia g uilty and sentenc ed him to four y ear s’ imprisonment. After the trial court denied Gar cia’ s post-conviction motion for fore nsic DNA testing, Gar cia perf ecte d his appea l under chapte r 64 of the Texas Code of Criminal Procedur e. Howeve r, on appea l, i nstead of prese nting arg uments rela ted to the trial court’s order deny ing DNA testing, he now challeng es the trial court’s judgme nt of conviction on g rounds that he

rec eived ineffe ctive assistance of counsel. Be cause we lack jurisdiction over Gar cia’ s sole issue on
appea l, we dismiss his appeal for w ant of jurisdiction.

BACK GR OUND On Aug ust 20, 2010, Gar cia fi l ed a motion for fore nsic DNA testing of evidenc e containing biologica l materia l pursuant t o ch ap t er 64 of the Texas Code of Criminal Procedur e (DNA -testing motion). See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (West 2006 & Supp. 2011).I

n h is D N A

- te s ti n g mo ti o n , G a r c ia a r g u e d th a t D N A w a s o b ta in e d f

r o m b o th h im a

n d th e c o mp la in a

n t but that the DNA wa s never tested. Gar cia also asser ted that he would not ha

ve been convicted in
l i ght of the DNA evidenc e that would be reve aled upon testing. I n a written response , the St at e contende d that DNA samples had been obtained from both Gar cia and the complainant and that the samples had been tested prior to Gar cia’ s conviction. I n support of its response , the State attache d

a serolog y

/DNA repor

t d at ed J an u ary 15, 2008, issued by the Texas Depa rtment of Public Safety (DPS repor

t). Acc ording to the DPS repor t, the DNA profile from a swab taken from complainant’s b r e a s t w a s d e te r

mi n e d to b e c o n s is te n t w it

h th e D N A p r o f

il e o b ta in e d f

r o m a s w a b o f G a r c ia ’ s s a li v a . 1
On September 15, 2010, the trial court denied Gar cia’ s motion for DNA testing. 2
Fur ther, the trial court denied Gar cia’ s reque st for appointed counsel, concluding that Gar cia “fa iled

on all g rounds to provi d e the Court with any rea sonable basis for relief .” See id

. art. 64.01(c) (re quiring trial court to appoint counse l for chapter 64 proce eding if it finds that convicted per son is indige nt and that there are rea s o n ab l e gro u n d s for moti on to be filed). The trial court’s written order ref ere nces a nd attache s a copy

of the DPS repor

t. This appea l followed. 3

Acc ording to the DP S repor t, the probabilit y of selecting an unrelated p er s o n at random 1 wh o could be the s ource of t he major component in this DNA profile i s approximately 1 in 11

. 3 0 quadrillion for Hispanic s. There is no indication from the rec ord that a hear ing on Gar ci a’ s DNA- testing motion 2 was ever held befor e the trial court. Howeve r, chapte r 64 does not require that a trial court hold an evidentiar y hear ing befor e ruling on a mo t i o n fo r DNA testing, and the trial court may consider information attache d to the State’s brief in issuing its ruling

. Ex parte Gutierrez , 337 S.W .3d 883, 893 (Tex. Crim. App. 2011). The trial court’s amende d and corr ecte d order deny ing relief under chapte r 64, enter ed on 3 October 20, 2011, also ref ere nces and attache s a copy of a J anuar y 2008 let t er fr o m t h e S t ate to Gar cia’ s trial counsel, notify ing him that the State intended to call a DPS staff member as an expert on DNA a

naly sis. 2DISCUSSIO N

Issue prese nted

Thoug h Gar cia has perf

ecte d this appea l pursuant to chapte r 64, Gar cia now arg ues only that this Court should reve rse his conviction on g rounds that he rec eived ineffe ctive assistance of counsel rela ted to his plea of g uilty

. Specifica lly , Gar cia arg ues that his decision to plead g uilty

was based on the err oneous advice of counsel conce rning the sex-offende r reg istration require ments and deporta tion conseque nces of his plea. Even liberally construing Gar cia’ s brief befor e this Court, it contains no arg ument that th e t ri al court err ed in deny ing his DNA testing motion; Gar cia has there fore abandone d any arg ument with respe ct t o t h at m o tion. See Tex. R. App. P. 38.1, 38.9.
Be fore deciding the merits of Gar cia’ s ineffe ctive assistance of counsel claim, we examine the threshold issue of whe ther we have jur isdiction to consider it.

Jurisdiction
J urisdiction conce rns the power of the court to hear and deter min e a ca se; it is fundame ntal and cannot be ignor ed by a court. See State v. Riewe , 13 S.W .3d 408, 410 (Tex. Crim. App. 2000). As an appellate court, we have the power to de termine sua sponte the threshold issue of whether we have jurisdiction over the appea l. State v. Roberts , 940 S.W .2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano , 67 S.W .3d 892, 894 (Tex. Crim. App. 2002). I f we deter

mine that we lac k jurisdiction, we have no power to dispose of the appe al other than to dismiss it for want of jurisdiction. Rege r v. Stat e , 222 S.W .3d 510, 513 (Tex. App.—For t Worth 2007, pet. ref’ d).

I n h is n o ti c e o f a

p p e a l to th is Co u

r t, G a r c ia p u r p o r ts to p e r f e c t h is a p p e a l u n d e r c h a p te r 64 of the code of criminal proce dure. We first consider whether chapte r 64 confe rs jurisdiction on 3this Court to consider Gar cia’ s ineffe ctive assistance of counsel claims. Chapter 64 authorizes DNA

testing in case s in which the applicant meets the require ments enumer ated in the statute. Tex. Code Crim. Proc

. Ann. art. 64.03 (West Supp. 2011). The statute also confe rs jurisdiction on this Court
to r eview a trial court’s order deny ing post-c onviction DNA testing in a ny case in w hich the death penalty is not imposed. Id

. art. 64.05 (West 2006); see Rege r , 222 S.W .3d at 513. Howeve r, chapte r 64 is not an invitation to revie w ever y potential err or in the underly ing trial proce eding s; instead, it is simply a proce dural vehicle for obtaining evidenc e “which might then b e u s ed in a state or fede ral habea s proce eding .” See Thacker v. State , 177 S.W .3d 926, 927 (Tex. Crim. App. 2 0 05).
Ac co rd i n gl y , chapte r 64 does not confe r jurisdiction on an appellate court to consider “collate ral attacks on the trial court’s judgme nt or to revie w, under the g uise of a DNA testing appea l, any thing bey ond the scope of those article s.” Rege r , 222 S.W .3d at 513. Be cause Gar cia’ s claim that he was denied eff ective assistance of counsel is bey ond the scope of chapte r 64, we do not have jurisdiction under c hapter

64 to consider the c laim.
We next examine whether , independe nt of chapte r 6 4, we have jurisdiction over Gar cia’ s ineffe ctive assistanc e of counsel claim. A claim of inef fec tive assistance of counse l may be raised on direc t appea l, assuming the rig ht to such appea l otherwise exis ts. See Ex parte W hite,
160 S.W .3d 46, 49 n.1 (Tex. Crim. App. 2004) (explaining that ineffe ctive assistance of counsel claims can be raised on direc t appea l). I n this case , howeve r, the trial court has cer tified that Gar cia has no rig ht to appea l his conviction beca use it was the result of a plea ag ree ment. See Tex. R. App.
P. 25.2(a) (2), (d). Fur

ther, any rig ht Gar cia may have had to perf ect a direc t appea l of his conviction expired in 2008. See Tex. R. App. P. 26.1 (notice of appea l due thirty day s from date of judgme nt).

4As a re sult, this Court la cks jurisdiction to revie w Gar cia’ s ineffe ctive assistanc e of c ounsel claim

as a dire ct appe al. 4

I n s u m m ary , independe nt of chapte r 64, we do not have jurisdiction over Gar cia ’s i n ef fe ct ive assistance of counsel claim on direc t appea l. I n addition, chapte r 64 does not conf er ju r is d ic ti o n o v e r G a

r c ia ’ s in e f f e c ti v e a s s is ta

n c e o f c o u n s e l c la im , w h ic h o p e r a

te s a s a c o ll a

te r a l a tt a c k

on his judg ment of conviction outside the scope of chapte r 64. There fore , we have no jurisdiction to consider Ga

rcia ’s claim of ine ffe ctive assistanc e of c ounsel.

CONCLUSION
Be cause Garci a has abandone d any claim that the trial court err ed in deny ing his motion for DNA testing under chapte r 64, and beca use we have no jurisdiction to consider Gar cia’ s claim that he rec eived ineffe ctive assistance of counsel, we dismiss Gar cia’ s appeal for want of jurisdiction.

__________________________________________ Diane M. H enson, Jus tice

Thoug h Gar cia does not purport to bring this appe al as part of a post-conviction habea s 4 corpus proce eding , we note that claims of ineffe ctive assistance of counsel may be raised for the first time in such proce eding s. See Ex parte W hite, 160 S.W .3d 46, 49 n.1 (Tex. Crim. App. 2004). Howeve r, article 11.07 of the code of criminal proce dure vests complete jurisdiction over postconviction relief from final felony convictions in the Tex as C ourt of C riminal Appea ls. Board of Pardons & Par o l es ex r el

. K eene v. Court of Appeals for Eighth Dist ., 910 S.W .2d 481, 483 (Tex. Crim. App. 1995); In re W atson , 253 S .W.3d 319, 320 (Tex. App.—Amar illo 2008, orig

. proce eding ). Courts of appea ls have no jurisdictio n o ver criminal-law matters perta ining to proce eding s under article 11.07. In re Briscoe , 230 S.W .3d 196, 196-97 (Tex. App.—Houston [14t h Dist.] 2006, orig . proce eding ). 5Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Dismissed for Want of J urisdiction Filed: F ebrua

ry 29, 2012 Publis h

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