No. 01-10-00171-CR
Opinion issued February 17, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court, Harris County, Texas, Trial Court Case No. 876384.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
JANE BLAND, Justice.
William Harris challenges the trial court's order denying his third motion for post-conviction forensic DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 64.01-05 (Vernon 2006 Supp. 2010). He specifically claims that the trial court erred by ruling on his motion without first appointing counsel. We affirm the trial court's order.
Background
A jury convicted Harris of murdering his wife by strangulation and assessed his punishment at sixty-five-years' confinement. The Texarkana Court of Appeals affirmed his conviction. Harris v. State, 133 S.W.3d 760, 775. (Tex. App.-Texarkana 2004, pet. ref'd). After his conviction, Harris twice moved for post-conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. The trial court denied these motions, and Harris appealed the denial of his second motion for DNA testing. This Court affirmed the trial court's ruling, holding that Harris failed to prove by a preponderance of the evidence that he would not have been convicted had exculpatory results been obtained in DNA testing. See Harris v. State, No. 01-08-00144-CR, 2008 WL 5651469, at *3 (Tex. App.-Houston [1st Dist.] Feb. 19, 2009, pet. ref'd) (mem. op., not designated for publication). This Court noted that Harris's affidavit in support of his motion offered only a conclusory statement that he would not have been convicted if DNA testing had been done on a number of items of evidence, namely (1) car floor mats, (2) blood from the complainant's carpet, linens, and a pillow case, and (3) hair fibers, fingernail scrapings, and vaginal and anal swabs retrieved from Harris's wife during the investigation. Id. This Court also noted that the existence of another person's DNA found in any of these samples would not prove, however, by a preponderance of the evidence, that Harris was wrongly convicted, because it would not exclude Harris as the person who strangled his wife. Id. Following his appeal, Harris filed a third motion for DNA testing in the trial court, again seeking testing on a number of items. He also filed a request for appointment of legal counsel. The trial court denied Harris's third motion. Discussion
On appeal, Harris contends that he was entitled to appointment of counsel because the trial court found him to be indigent, and he requested such appointment. He claims that appointment of counsel is mandatory and must occur prior to the trial court's determination on the merits of a motion for DNA testing. The entitlement to counsel in a post-conviction DNA proceeding is not absolute; it is conditioned on three criteria. Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010). First, a defendant must inform the trial court that he or she wishes to submit a motion. Id. Second, the trial court must find that "reasonable grounds" exist for the filing of a motion. Id. Third, the trial court must find that the convicted person is indigent. Id. The second criterion is relevant in this appeal because the State argues that Harris failed to show reasonable grounds for filing the motion. The statute does not define "reasonable grounds." However, this Court, in accord with the San Antonio and Texarkana Courts of Appeals, looks to the requirements of article 64.03 to determine whether reasonable grounds for the filing of a motion have been asserted. Bates v. State, 315 S.W.3d 598, 600-01 (Tex. App.-Houston [1st Dist.] 2010, no pet.); see also Blake v. State, 208 S.W.3d 693, 695 (Tex. App.-Texarkana 2006, no pet.); Lewis v. State, 191 S.W.3d 225, 228 (Tex. App.-San Antonio 2006, pet. ref'd). According to article 64.03, a convicted person requesting DNA evidence must show by a preponderance of the evidence that he "would not have been convicted if exculpatory results had been obtained through DNA testing." TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A) (Vernon Supp. 2010). To meet this requirement, the person must show that "`a reasonable probability exists that exculpatory DNA tests would prove their innocence.'" Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (quoting Kutzner v. State, 89 S.W.3d 427, 439 (Tex. Crim. App. 2002). In Bates, Bates, who was convicted of aggravated sexual assault of a child, challenged the trial court's failure to appoint counsel for his second motion for DNA testing. 315 S.W.3d 598, 600. This Court noted that it had held in an earlier opinion on Bates's first motion for DNA testing that he had failed to show a reasonable probability existed that he would not have been convicted if permitted to conduct DNA testing. Id at 601. This Court concluded that the trial court did not err in finding that Bates had failed to show reasonable grounds for the appointment of counsel in light of its earlier holding that Bates had failed to meet one of the requirements of article 64.03 and the fact that Bates had failed to add additional evidence or argument in his second motion for testing to meet this requirement. Id. As in Bates, this Court previously held that Harris's second motion for DNA testing that Harris failed to show that a reasonable probability existed that he would not have been convicted if permitted to conduct DNA testing. See Harris, 2008 WL 5651469, at *3. Harris's third motion for DNA testing adds no new argument or evidence. He does not explain how DNA analysis of the items he requested reasonably would prove his innocence of the strangulation of his wife. Just like his second motion, Harris's third motion merely states that he would not have been convicted if DNA testing had been done on the requested items. But the existence of another person's DNA found in any of these samples would not prove by a preponderance of the evidence, that Harris was wrongly convicted, because it would not exclude him as the person who strangled his wife. See id.; see also Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) ("without more, the presence of another person's DNA at the crime scene would not constitute affirmative evidence of the appellant's innocence" requiring relief under Chapter 64); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (holding that evidence of another person's DNA, if found on hair, cigarette butt and blood-stained bath mat collected from crime scene, does not constitute affirmative exculpatory evidence). In light of this Court's earlier holding that Harris had failed to meet one of the requirements of article 64.03 and the fact that Harris's subsequent motion does not add anything to meet this requirement, we hold that the trial court did not err in concluding that Harris had failed to show reasonable grounds for the appointment of counsel. See Bates, 315 S.W.3d 598, 601. Conclusion
We overrule Harris's issue on appeal and affirm the order of the trial court.