Motion for Rehearing Granted; Memorandum Opinion and Judgment issued
February 21, 2013, Withdrawn and Vacated, Appeal Reinstated; Order filed
April 25, 2013.
In The
Fourteenth Court of Appeals
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NO. 14-12-00895-CR
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JOE ANTHONY MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 765967
ORDER
This is an appeal from an order denying appellant’s motion for post-
conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal
Procedure. Appellant’s appointed counsel filed a brief in which she concluded that
the appeal is wholly frivolous and without merit. See Anders v. California, 386
U.S. 738, 87 S.Ct. 1396 (1967).
A copy of counsel’s brief was delivered to appellant. Appellant was advised
of the right to examine the appellate record and file a pro se response. See Stafford
v. State, 813 S.W.2d 503, 512 (Tex. Crim. App. 1991). When no response was
filed after sixty days, this court reviewed the record and counsel’s brief. On
February 21, 2013, the court issued its memorandum opinion and judgment
affirming the trial court’s order.
On March 25, 2013, after being granted an extension of time, appellant filed
a pro se motion for rehearing. In his motion for rehearing, appellant asserts that he
mailed a responsive brief on February 4, 2012, but it was returned to him because
it was mailed to this court’s former address. Appellant also filed a motion to
supplement the record, abate for a ruling on the merits of appellant’s motion for
new trial, to review the prosecutor’s file, and for copies of his original trial records.
The court requested a response to appellant’s motion for rehearing. See Tex.
R. App. P. 49.2 (stating a motion for rehearing will not be granted unless a
response has been filed or requested by the court). On April 12, 2013, the State
filed its response.
We GRANT appellant’s motion for rehearing so that he may file a pro se
response to counsel’s Anders brief. We DENY appellant’s motion to supplement
the record, abate for a ruling on the merits of his motion for new trial, to review the
prosecutor’s file, and for copies of his original trial records. A ruling on the merits
of appellant’s motion for new trial is not required because the motion was
overruled by operation of law, and appellant has not demonstrated that a hearing is
required. See Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003); see
also Tex. R. App. P. 21.8(c). Appellant’s other requests relate to his original
conviction. An appellant may not use Chapter 64 to collaterally attack the
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sufficiency of evidence to support his conviction or to attack his trial attorney’s
effectiveness. See State v. Holloway, 360 S.W.3d 480, 488-90 (Tex. Crim. App.
2012) (holding Chapter 64 provides a mechanism for post-conviction DNA testing
and the trial court may not grant any other form of relief).
We ORDER this court’s memorandum opinion and judgment issued
February 21, 2013, WITHDRAWN and VACATED. The appeal is
REINSTATED. Appellant is granted an extension of time to file a pro se response
to counsel’s Anders brief until May 30, 2013.
PER CURIAM
Panel consists of Justices Frost, Brown, and Busby.
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