ON DIRECT APPEAL FROM THE 107TH DISTRICT COURT

CAUSE NUMBER 1998-CR-1391-A

CAMERON COUNTY

Ruben Gutierrez, previously convicted of capital murder and sentenced to death, appeals the trial court's order denying his request for appointed counsel under Article 64.01(c), Texas Code of Criminal Procedure. He contends that the trial judge erred in concluding that he failed to offer "reasonable grounds" for filing a motion for post-conviction DNA testing as required by Article 64.01(c). ⁽¹⁾

After reviewing the parties' briefs, we have determined that we need additional briefing. We therefore order the parties to brief the following issue: Whether an order denying appointed counsel under Article 64.01(c) is an immediately appealable order. ⁽²⁾ The parties shall also address whether the absence of a certification of the right to appeal in the record has any bearing on this issue. ⁽³⁾

Briefs are to be filed with this Court within 60 days of the date of this order. No motions for extension will be entertained.

IT IS SO ORDERED THIS THE 16th DAY OF DECEMBER, 2009.

Do Not Publish

1. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2009), last amended Acts 2007, 80th Leg., ch. 1006, § 2, eff. Sept. 1, 2007.

2. SeeTex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2009).

3. See Tex. R. App. P. 25.2.