TERRY PRESTON HELMCAMP v. THE STATE OF TEXAS

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Court of Criminal Appeals of Texas.

TERRY PRESTON HELMCAMP, Appellant v. THE STATE OF TEXAS

NO. PD-1114-16

Decided: January 25, 2017

DISSENTING OPINION

I respectfully dissent from this Court's refusal of the petition for discretionary review filed by Terry Preston Helmcamp, appellant. For the reasons explained below, I would grant review on our own motion to consider whether a due-process violation has occurred in this case, and, if so, I would reset the appellate timetables to permit appellant an opportunity to appeal.

In his instant pleadings, appellant, who is pro se and incarcerated, contends that he has been prevented from appealing the trial court's order denying his motion for post-conviction DNA testing due to untimely notice of the court's order. Appellant contends that the trial court signed its order denying his motion for DNA testing on May 20, but he did not receive notice of that order until July 25, which was long after the thirty-day window for filing a notice of appeal had passed. See TEX. R. APP. P. 26.2(a). The lower court's opinion dismissing appellant's subsequent appeal for want of jurisdiction appears to confirm that appellant did not receive timely notice of the trial court's order. See Helmcamp v. State, No. 09-16-00281-CR, 2016 WL 4544481 (Tex. App.—Beaumont Aug. 31, 2016). In his instant petition, appellant appears to complain that the court of appeals erred by dismissing his appeal, given the trial court's failure to comply with the rules of appellate procedure, which provide that, “[w]hen a court enters a judgment or other appealable order and the defendant has a right of appeal, the court (orally or in writing) shall advise the defendant of his right of appeal and of the requirements for timely filing a sufficient notice of appeal.” See TEX. R. APP. P. 25.2(h). In short, appellant appears to suggest that, because the trial court did not timely notify him of its order or of his right of appeal, the court of appeals erred by dismissing his appeal.

In the past, I have observed that the type of problem that has occurred in this case is likely to repeat itself, given that trial courts routinely issue orders in Chapter 64 proceedings outside of a defendant's presence, as here, due to the defendant's incarceration and lack of counsel to assist with the pro se motion for post-conviction DNA testing. Davis v. State, No. PD-1490-14, 2015 WL 9594718, at *2 (Tex. Crim. App. Mar. 18, 2015) (Alcala, J., concurring). In fact, this very problem did repeat itself in the case of Reginald Davis, who twice filed a motion for post-conviction DNA testing, and who was twice denied his right to appeal the trial court's order denying his motion due to untimely notice from that court. Davis v. State, No. PD-1526-15, 2016 WL 4801627 (Tex. Crim. App. Sept. 14, 2016) (Alcala, J., dissenting). In my opinion dissenting from the refusal of Davis's second petition for discretionary review, I urged this Court to grant review on our own motion to assess whether the trial court's repeated failure to provide Davis with timely notice of its appealable orders would constitute a due-process violation, the remedy for which would be to reset the appellate timetables and permit Davis the opportunity to appeal. Id. at *4. In a case subsequent to Davis that presented similar facts, this Court again refused review, and I dissented. See Schmotzer v. State, No. PD-0142-16, 2016 WL 5118330 (Tex. Crim. App. Sept. 21, 2016) (Alcala, J., dissenting).

Given the frequency with which this problem continues to present itself in situations involving pro se, incarcerated litigants, I once again urge this Court to grant review of appellant's case on our own motion to assess whether the systematic denial of the right of appeal in Chapter 64 DNA proceedings due to untimely notice of appealable orders results in a due-process violation, the remedy for which is to reset the appellate timetables. Because the Court declines to consider this issue, I respectfully dissent.

ALCALA, J., filed a dissenting opinion.

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