Davis v. State

¶1filed a dissenting opinion in which JOHNSON, J., joined.

¶2This is the second occasion that this Court has had to consider the complaint presented by Reginald D. Davis, appellant, that he was deprived of his right to appeal the trial court’s ruling denying his motion for post-conviction DNA testing as a result of that court’s failure to give him timely notice of its ruling. History has repeated itself in this case. As applied in this case, there appears to be a systemic flaw in the way that this pro se, incarcerated litigant has been notified of the trial court’s ap-pealable order regarding the denial of Chapter 64 DNA testing. I would, on our own motion, grant review as to the question of whether this systemic failure re-*806suits in a due-process violation in this case, and I would hold that it does. I, therefore, respectfully dissent from this Court’s decision to refuse appellant’s petition for discretionary review.

¶3The last time that appellant presented his identical complaint to this Court, I addressed this problem by observing that this situation “appear[ed] likely to repeat itself given that many individuals seeking post-conviction DNA testing are, like appellant, incarcerated and unrepresented by counsel, and given that orders in Chapter 64 proceedings are routinely issued outside the defendant’s presence.” Davis v. State, No. PD-1490-14, 2015 WL 9594718, at *2 (Tex.Crim.App. Mar. 18, 2015) (per cu-riam) (Alcala, J., concurring).1 As a potential policy solution to this problem, I suggested that this Court might consider amending the rules of appellate procedure so that, in situations involving appealable orders under Chapter 64, the appellate timetables would run from the date upon which a defendant receives notice or acquires actual knowledge of such an order, as opposed to the date upon which the trial court enters the order. Id.I noted that the civil rules of appellate procedure already provide for such an extended timetable whenever a party has not received timely notice of an appealable order, but that no such exception exists in the criminal rules. Id.(citing Tex, R. App. P. 26.2(a), Tex. R. App. P. 4.2(a)). I concluded by observing that such an amendment to the appellate timetables, limited to the context of Chapter 64 proceedings, “would ensure that pro se defendants are able to exercise their right to appeal the denial of post-conviction DNA testing and would promote judicial economy by resolving such matters in a single proceeding rather than encouraging successive filings.” Id.This Court’s rules committee has discussed possible amendments to the criminal rules of appellate procedure but has yet to enact any rules that would resolve the instant problem as it applies to appellant.

¶4In his present petition, appellant once again complains of the trial court’s faitee to provide him with timely notice of its appealable order denying post-conviction DNA testing, thereby depriving him once again of his right to appeal that ruling. In particular, appellant complains that the current rules of appellate procedure' that allow for no exception to the appellate timetables when an incarcerated, pro se defendant has not received timely notice of an appealable order are flawed, lead to “absurd consequences,” and have placed him in a “neverending loop” of litigation. He notes that, if this were a-civil case governed by Rule of Appellate Procedure 4.2(a)(1), then the court of appeals would be permitted to hear his appeal, and he argues that this disparate treatment of civil and criminal cases is -unjust.

¶5Appellant, who is proceeding pro se in this. petition, suggests that this Court might remedy this problem by either applying the civil rules of appellate procedure to his case or, alternatively, creating an exception to the appellate timetables in the interests of justice. Although those particular remedies do not appear to be viable under this Court’s established precedent,2 given that appellant is pro se, and given the systemic failure that has twice *807occurred in this case, I would sustain this pro se appellant’s complaint on our own motion on the basis of a due-process violation, and I would reset the appellate timetables to permit appellant the opportunity to appeal. ...

¶6With these comments, I respectfully dissent.