NO. 12-14-00319-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEMETRIC LEWIS ALFRED, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Demetric Lewis Alfred appeals the trial court’s order denying his motion for forensic
DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. He raises one issue on
appeal. We dismiss for want of jurisdiction.
BACKGROUND
An Angelina County grand jury indicted Appellant for the offense of capital murder on
March 28, 2001. Appellant pleaded guilty to the offense and was sentenced to imprisonment for
life. On March 27, 2013, Appellant filed a motion seeking the appointment of counsel to
represent him in preparing and filing a motion for DNA testing under Chapter 64.
On September 15, 2014, the trial court issued an “Order Regarding Post-Conviction DNA
Testing” that “denied” Appellant’s “request for Post[]Conviction forensic DNA testing.” This
appeal followed.
JURISDICTION
In his brief, Appellant contends the trial court erred by denying his “motion for
post[]conviction DNA testing.”
The trial court’s order states that Appellant did not establish he would not have been
convicted if exculpatory results had been obtained through DNA testing and further states his
request for post conviction DNA testing “should be denied.” However, Appellant never filed an
actual motion for post conviction DNA testing.
Upon receiving Appellant’s motion for appointed counsel, the trial court appointed
counsel to investigate “the availability of remedies” Appellant had under Chapter 64. The trial
court further instructed counsel to “advise the Court by written report as to whether grounds exist
for findings by the court pursuant to Article 42.03(a), Texas Code of Criminal Procedure,
whereby a Motion for Forensic DNA Testing should be filed and heard by this court.”
Appellant filed only a motion for appointed counsel (and a declaration of indigency).
The attorney appointed to investigate Appellant’s claim never filed a motion for DNA testing on
Appellant’s behalf. Thus, at this stage of the proceeding, Appellant has “only contemplated the
filing of a motion for DNA testing.” See Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim.
App. 2010). Consequently, we deem the trial court’s September 15, 2014 order solely as an
order denying Appellant’s request for the appointment of counsel. See, e.g., Lipscomb v. State,
No. 06-15-00033-CR, 2015 WL 2090923, at *1 (Tex. App.—Texarkana 2015, no pet.) (mem.
op., not designated for publication).
An order denying the appointment of counsel in a Chapter 64 proceeding is not an
appealable order under Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. See TEX. R.
APP. P. 25.2(a)(2); Gutierrez, 307 S.W.3d at 323. Accordingly, we have no jurisdiction to
consider the merits of Appellant’s claim. See id.
DISPOSITION
Because we have no jurisdiction to consider the merits of Appellant’s claim, we dismiss
this appeal.
GREG NEELEY
Justice
Opinion delivered June 17, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 17, 2015
NO. 12-14-00319-CR
DEMETRIC LEWIS ALFRED,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. CR-22090-AA)
THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court is without jurisdiction of the
appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.