### 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

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NO. 03-09-00662- CR

In re Charles Raym ond L ee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT

NO. 03- 798- K2 77, H ONO RAB LE K EN ANDERSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
We withdraw our opinion and judgment i ssued M arc h 12, 201 0 , and subst itute the following opinion in place of the ear lier one.

Charles Ray

mond L ee is serving life sentenc es imposed follow i n g his 2005 convictions in Wil liamson County for two counts of ag gra v ated sexual assault. On October 28, 2009, the district c lerk filed L ee’ s pro se notice of appe al from what was purpor ted to be an order by the district c lerk dated October 20, 2009, deny ing L ee’ s motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (West Supp. 2009). The cler k forwa rded a copy of the notice of appe al to this Court, and the appea l was docke ted on Novembe r 4, 2009.On Fe bruar y 12, 2010, the Court notified the district cler k that the cler

k’s rec ord was overdue
. On Februa

ry 19, the C ourt rec eived a letter from the di strict cler k stating that “neither a Motion nor an Orde r reg arding DNA testing has been rec eived from [L ee]. Nor has the [di strict] court signe d an order deny ing or g ranting a re quest for D NA testing.” On the same day , the Court
rec eived and filed a cler k’s rec ord containing the pro se notice of appea l and rela ted pro se d o cuments filed by L ee, but containing no motions or order s under chapte r 64. The Cour t l at er
rec eived a pro se motion from L ee asking that he be allowed to appea l an order deny ing his reque st for c ounsel in the cha

pter 64 proc eeding
. On Marc h 12, 2010, rely ing on the information we had rec eived from the district cler k, we dism issed this appea l for wa nt of jurisdiction beca

use it appea

red tha t “the dis trict court has made no appea lable order s deny ing counsel or DNA testing under chapte r 64.” Three day s later,
on Marc h 15, the Court rec eived a supplemental clerk ’s re cord containing a copy of the district court’s or der, da ted and f iled October

20, 2009, denying L ee’ s motion for appointment of counse l pursuant to article 64.01. Id
. art. 64.01(c)
. L ee’ s motion for re h ea ri n g, t o which a copy of the 1 district court’s order was attache d, was rec eived and filed on Marc h 29. Asked to respond, the State ag ree s that the appe al should not have be en dismissed for the r eason it wa s. 2

The State asser

ts, howeve r, that the appea l should never theless be dismiss ed in light of the rec ent holding by the court of criminal appea ls that the ref usal to appoint counsel under article 64.01(c) is not an appea lable order under Texas Rule of Appellate Procedur e 25.2(a) (2). Gutierrez The supplementa l clerk’ s rec ord does not conta in a copy of the motion itself. 1 We assume that the district cler k’s failure to forwa

rd a copy of the district court’s order to this 2 Court, and the cle rk’s stateme nt to the Court that no order ha d been f iled, wer e simple mistakes. 2v. State , No. AP-76,186, 2010 Tex. Crim. App. L EXI S 99, at *10 (Tex. Crim. App. Mar. 24, 2010).

The c ourt wrote:
Such an appea l is prema ture
. . . . The better course is f or a convicted person to file a motion for DNA testing and, if and when the motion is denied, appea l any alleg ed err or made by the trial judge in ref using to appoint counsel. I f a revie wing cour t deter mines that the trial judge err ed in f ailing to a ppoint c ounsel, then the case will be rema nded to the trial court so the convicted person can file a subsequent motion for DN A testing with the assistance of counse l.
Id
. at *10-11. I n other words, the ref usal to appoint counsel is an appea lable i s s u e, but not on an interlocutory basis. The convicted person must instead seek DNA testing without the assistance of counsel, a nd raise the issue (in a pro se appea l) if and whe n testing is denie d. Neve rtheless, in light of Gutierrez , L ee may not appea l at this time the district court’s October 20, 2009, order ref using to a ppoint c ounsel to a ssist L ee in a chapte r 64 proce eding
. I f he has not alre ady done so, L ee must file a pro se motion for DNA testing. The district court’s ref usal to appoint counsel may

be appe aled if a

nd when the c ourt denies the te sting motion. The motion for rehe aring is overr uled. The appeal is dismiss ed for want of jurisdiction.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Dismissed for Want of J urisdiction on Motion for Rehear ing Filed: May

14, 2010 Do Not Publish 3