Opinion
No. 06-05-00077-CR
Submitted: July 11, 2005.
Decided: August 17, 2005. DO NOT PUBLISH.
On Appeal from the 8th Judicial District Court, Hopkins County, Texas, Trial Court No. 11045.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
In December 2004, James Aubry Spruce requested the trial court appoint him legal representation for the purpose of pursuing an application for post-conviction DNA testing. The trial court denied Spruce's request. Spruce appeals, contending a trial court may not deny an indigent's request for appointment of counsel for the purpose of post-conviction DNA testing. In a second point of error, Spruce contends the district clerk abused her authority in failing to file certain documents with the trial court. We overrule both contentions and affirm the trial court's judgment.
I. Denial of Appointment of Counsel
Previous court decisions by courts of this state have stated the trial court must appoint counsel for the purpose of applying for post-conviction DNA testing if (1) the convicted person informs the trial court that he or she wishes to submit a motion for testing under Chapter 64, and (2) "the court determines that the person is indigent." See, e.g., Winters v. Presiding Judge of Criminal Dist. Court Number Three of Tarrant County, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003) (wording of statute leaves trial court no discretion, even if record is clear no biological material exists in case); In re Cash, 99 S.W.3d 286 (Tex.App.-Texarkana 2003, orig. proceeding); Gray v. State, 69 S.W.3d 835, 837 (Tex.App.-Waco 2002, no pet.). At the time the Texas Court of Criminal Appeals decided Winters, this Court decided Cash, and the Waco court decided Gray, Chapter 64.01(c) read,A convicted person is entitled to counsel during a proceeding under this chapter. If a convicted person informs the convicting court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person.Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, Tex. Gen. Laws 2, 3. But in 2003 the Texas Legislature amended Article 64.01(c). As amended, the statute now reads,
A convicted person is entitled to counsel during a proceeding under this chapter. The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent.Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2004-2005) (emphasis added). The Legislature's change "applies only to a convicted person who on or after [September 1, 2003,] submits a motion for forensic DNA testing of evidence under Article 64.01. . . ." Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17. The entirety of Spruce's request for appointment of counsel for post-conviction DNA testing (filed more than a year after the 2003 effective date of the amendment to Chapter 64) stated,
COMES NOW, James Aubry Spruce, Defendant pro-se, TDC # 325097, and request [sic] appointment of counsel to assist him in obtaining an order for DNA testing from the Court pursuant to Article 64.01(c), CODE OF CRIMINAL PROCEDURE, enacted as Senate Bill 3, effective April 5, 2001. Defendant wishes to submit a motion pursuant to Chapter 64 requesting DNA testing and defendant is indigent. An affidavit of indigency is attached and incorporated hereto as Exhibit "1".Clearly, nothing in Spruce's request sets forth reasonable grounds of why DNA testing should be pursued, nor does it set forth reasonable grounds for Spruce to believe biological material still exists and could be tested in this case. Because Spruce has not satisfied the three statutory requirements for appointment of counsel, we cannot say the trial court erred in denying Spruce's request for appointment of counsel. Cf. In re Ludwig, 162 S.W.3d 454, 454-55 (Tex.App.-Waco 2005, orig. proceeding) (post-amendment, Chapter 64 no longer mandates appointment of counsel unless reasonable grounds exist for motion to be filed).
II. The District Clerk
In his second point of error, Spruce contends Patricia Dorner, the Hopkins County District Clerk, abused her discretion by failing to file documents with the trial court. It is the duty of the clerk of a district court to "carefully maintain and arrange the records relating to or lawfully deposited in the clerk's office." Tex. Gov't Code Ann. § 51.303 (Vernon 2005). Spruce argues Deputy Clerk Margie Peck refused to file Spruce's "Motion for Reconsideration and Notice of Appeal." But the record before this Court clearly refutes Spruce's factual contention: the record shows the clerk received and filed Spruce's "Motion for Reconsideration and Notice of Appeal" January 10, 2005. Accordingly, we overrule Spruce's second point of error.III. Conclusion
In 2003, the Texas Legislature amended Article 64.01 of the Texas Code of Criminal Procedure. No longer are trial courts required to appoint counsel for post-conviction DNA testing merely on request after the convicted person proves indigency. Before counsel must be appointed, the convicting court must now be satisfied that reasonable grounds exist to file a motion for post-conviction DNA testing. This requirement, however, applies only to requests for counsel made after September 1, 2003. Spruce filed his request for counsel after that date, and that request made no effort to show reasonable grounds exist for a motion for DNA testing to be filed. Because the record does not show the statutory requirements have been satisfied, we cannot say the trial court erred by denying Spruce's request for appointed counsel. We affirm the trial court's judgment.On June 12, 1981, Spruce was convicted of murder and sentenced to imprisonment for life in cause number 11045, filed in the 8th Judicial District Court of Hopkins County, Texas. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). (Although Spruce committed his crime December 6, 1980, the statutory definition of murder has not substantively changed in Section 19.02 since he committed his crime.)