Opinion
Nos. 10-07-00020-CR, 10-06-00385-CR
Filed: March 21, 2007. Do not publish.
Appeal from the 54th District Court McLennan County, Texas Trial Court No. 95-324-C. Appeal dismissed Original proceeding reinstated Motion to strike granted Motion for rehearing granted Response requested
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissents to the granting of the motion for rehearing with a note)
"(Chief Justice Gray would not grant the motion for rehearing in 10-06-00385-CR unless and until the time for the filing of the requested response has passed and we further conclude that Birdwell is entitled to some relief under his petition for writ of mandamus. See TEX. R. APP. P. 49.2.)"
MEMORANDUM OPINION AND ORDER
Vaughn Birdwell was convicted of first degree murder and sentenced to life in prison in January of 1996. The murder involved the violent stabbing death of a female victim. Birdwell appealed his conviction, arguing that he was denied his constitutional right to be tried by a jury of twelve peers because one juror had a felony conviction and should have been disqualified and that he did not receive a fair trial when the trial court denied his motion for mistrial following an outburst from a member of the audience. This Court overruled those two issues and affirmed Birdwell's conviction in a decision written by then Chief Justice Rex Davis and issued on January 22, 1997. Birdwell v. State, No. 10-96-032-CR (Tex.App.-Waco Jan. 22, 1997, pet. ref'd) (not designated for publication). The Court of Criminal Appeals refused to consider Birdwell's petition for discretionary review of this Court's decision. In re Birdwell, No. PD-0248-97 (Tex.Crim.App. April 23, 1997) (not designated for publication). In 1998, Birdwell filed a writ of habeas corpus with the Court of Criminal Appeals. The Court denied the writ without a written opinion based on the trial court's findings. Ex parte Birdwell, No. WR-37,251-01 (Tex.Crim.App. June 3, 1998) (not designated for publication). Three years later, in March of 2001, Birdwell filed a pro-se motion for DNA testing of evidence in the possession of the State. See TEX. CODE CRIM. PROC. ANN. art. 64.01 et seq (Vernon 2006). In that motion, Birdwell contended that he was attacked by a third party and that there was blood on the carpet at the scene, hair and semen samples, blood on a knife, and evidence under the victim's fingernails that could have been tested and that would show a third person was involved in the murder. Birdwell also requested an attorney to be appointed. The trial court denied both the motion for an appointed attorney and the motion for DNA testing. Birdwell did not appeal. In June of 2001, less than a month after the trial court's ruling on his initial motion, Birdwell filed a second pro-se motion for DNA testing. This time, he requested testing on "[e]vidence containing Irene Mitchell's (Victim) DNA" and a pocket knife. One month later, an attorney was appointed to represent Birdwell on his second motion. Two and a half years later, and prior to any ruling on the motion for DNA testing, Birdwell's counsel filed a motion to withdraw as the attorney of record citing the attorney's workload as the reason for the request. The second motion for DNA testing was denied on February 19, 2004. Counsel's motion to withdraw was not granted until April of 2004. In the interim, Birdwell filed a motion requesting clarification of whether the trial court had ruled on counsel's motion to withdraw. He then filed a petition for writ of mandamus with this Court requesting a writ to be issued against the trial court for failing to rule on his motion for clarification. But the trial court had ruled on Birdwell's motion for DNA testing prior to the filing of Birdwell's petition. This Court, in a per curiam opinion, denied the petition and held that Birdwell could appeal the trial court's decision and complain on appeal about representation. In re Birdwell, No. 10-04-00053-CR, 2004 Tex. App. LEXIS 2167 (Tex.App.-Waco March 3, 2004, orig. proceeding) (not designated for publication). Soon after our decision denying Birdwell's petition for writ of mandamus, Birdwell timely appealed the trial court's denial of his DNA motion and requested the appointment of an attorney. Almost a year later, this Court abated the appeal and directed the trial court to appoint an attorney to represent Birdwell in his appeal. Birdwell v. State, No. 10-04-00059-CR (Tex.App.-Waco Feb. 9, 2005, order) (not designated for publication). The trial court appointed an attorney for Birdwell in early March of 2005. On March 30, 2005 Birdwell mailed an "application" for writ of mandamus to this Court complaining that the trial court had not appointed an attorney to represent him in his appeal of the denial of his motion for DNA testing. No record was filed with the application. See TEX. R. APP. P. 52.7. Without explaining the ground(s) for denial, the Court, with Justice Vance authoring the opinion, denied the application. In re Birdwell, No. 10-05-00192-CR, 2005 Tex. App. LEXIS 2824 (Tex.App.-Waco April 13, 2005, orig. proceeding) (not designated for publication). In the direct appeal from the trial court's denial of the DNA motion, Birdwell argued that the trial court erred in not ruling on his attorney's motion to withdraw prior to ruling on the merits of his motion for DNA testing. The Court, with Justice Vance again authoring the opinion, affirmed the trial court's judgment, finding there was no abuse of discretion by the trial court in not granting the motion to withdraw until it had ruled upon Birdwell's motion for DNA testing. Birdwell v. State, No. 10-04-00059-CR, 2005 Tex. App. LEXIS 4880, *3 (Tex.App.-Waco June 22, 2005, pet. ref'd) (mem. op.). The Court of Criminal Appeals refused to consider Birdwell's petition for discretionary review of this Court's decision. In re Birdwell, 2005 Tex. Crim. App. LEXIS 1636 (Tex.Crim.App. Sept. 14, 2005) (not designated for publication). Birdwell then filed an original petition for writ of mandamus with the Court of Criminal Appeals in October of 2005. The Court denied the petition without an order on April 26, 2006. In re Birdwell, No. WR-37,251-02 (Tex.Crim.App. April 26, 2006) (not designated for publication). In the meantime, before the Court of Criminal Appeals denied the mandamus referred to above, Birdwell filed yet another application for writ of mandamus in this Court on February 15, 2006. In the application, Birdwell requested that this Court compel the trial court to vacate its February 19, 2004 order denying Birdwell's motion for DNA testing and to appoint "other counsel" to represent Birdwell on his motion. Birdwell based his request on the motion to withdraw filed by his appointed counsel which was not ruled on until after the trial court denied Birdwell's motion for DNA testing. No record was filed with the application. See TEX. R. APP. P. 52.7. Again, in an opinion written by Justice Vance, and again without specifying the reason(s), the Court denied Birdwell's application. In re Birdwell, No. 10-06-00042-CR, 2006 Tex. App. LEXIS 1461 (Tex.App.-Waco Feb. 22, 2006, orig. proceeding) (not designated for publication). Birdwell has now filed a third pro-se motion for DNA testing with the trial court. It was filed on July 12, 2006. In this motion, he requested DNA testing on the knife and swab samples from the rape kit to show that he did not attack, rape, or cause the death of the victim. After numerous inquiries to the district clerk and two motions to the trial court requesting a ruling on his DNA motion, Birdwell presented another petition for writ of mandamus to this Court on November 2, 2006. However, that petition did not contain a proof of service. In response to this Court's notification that the petition did not contain proof of service, Birdwell, in effect, moved this Court to dismiss his petition. The Court, in an opinion authored by Chief Justice Gray, granted the motion and dismissed Birdwell's petition without prejudice to the filing of a petition with proof of service. In re Birdwell, No. 10-06-00355-CR, 2006 Tex. App. LEXIS 10254 (Tex.App.-Waco Nov. 22, 2006, orig. proceeding) (not designated for publication). On November 28, 2006 Birdwell presented yet another petition for writ of mandamus; this one containing proper proof of service. This is one of the proceedings which is the subject of this opinion and order. In the petition, Birdwell requested this Court to require the trial court to rule on Birdwell's motion for DNA testing which was filed on July 12, 2006. No record was filed with the petition. See TEX. R. APP. P. 52.7. In an opinion again authored by Chief Justice Gray, and again without explanation of the reason(s), the Court denied Birdwell's petition. In re Birdwell, No. 10-06-00385-CR, 2006 Tex. App. LEXIS 10544 (Tex.App.-Waco Dec. 6, 2006, orig. proceeding) (not designated for publication). Not satisfied with the result reached, Birdwell filed in this Court a notice of appeal and an appellant's brief. This Court forwarded the notice of appeal, brief, and petition for writ of mandamus to the Court of Criminal Appeals because it appeared Birdwell was requesting a review of this Court's denial of his petition for writ of mandamus. The Clerk of the Court of Criminal Appeals returned the documents to this Court, stating in a letter that a petition for discretionary review may not be taken from the denial of mandamus relief and citing Jacolos v. State, 692 S.W.2d 724 (Tex.Crim.App. 1985). Upon its return to this Court from the Court of Criminal Appeals, our Clerk took the documents at face value and docketed the notice of appeal as a new appeal and assigned a new docket number, 10-07-00020-CR, to the appeal. See TEX. R. APP. P. 12.1. This is the other proceeding which is the subject of this opinion and order. The Clerk then notified Birdwell by letter that the appeal was subject to dismissal for want of jurisdiction because it appeared there is no right to appeal to a Court of Appeals that Court's denial of a petition for a writ of mandamus. The Clerk warned Birdwell that the appeal may be dismissed unless, within 21 days of the date of the letter, he filed a response showing grounds for continuing the appeal. Birdwell timely responded by sending a "supplement" arguing grounds to continue the appeal. In the supplement, Birdwell requested that the Court strike his second ground for review which the Court had interpreted as an appeal of our decision that denied his petition for writ of mandamus, number 10-06-00385-CR. A closer examination of this supplement now leads us to believe that, by the notice of appeal and brief, Birdwell was actually trying to have this Court reconsider its denial of the petition for writ of mandamus. A party representing themselves is entitled to a liberal reading of their pleadings, although they are not entitled to a procedural advantage. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Baughman v. Baughman, 65 S.W.3d 309, 312 (Tex.App.-Waco 2001, pet. denied). Therefore, a liberal reading of the document entitled "Notice of Appeal" and the subsequent supplement thereto leads us to conclude that the "Notice of Appeal" is actually a motion for rehearing. The Clerk of this Court is ordered to file it as such as of the date it was originally presented to the Clerk, December 18, 2006, in number 10-06-00385-CR. Because the motion for rehearing was presented for filing within fifteen days from the date of the denial of Birdwell's petition for writ of mandamus, it is, therefore, timely. See TEX. R. APP. P. 49.1. The original proceeding docketed under number 10-06-00385-CR is reinstated. All documents, including the record, filed in 10-07-00020-CR are ordered transferred to 10-06-00385-CR with a copy of this memorandum opinion and order to be retained in 10-07-00020-CR to explain the location of the contents of that proceeding. Because we have determined that Birdwell did not intend to file a notice of appeal and that the document entitled "Notice of Appeal" is a motion for rehearing, we dismiss the appeal set up as docket number 10-07-00020-CR. Birdwell's supplement filed on February 14, 2007 in response to the Clerk's letter questioning our jurisdiction contains a request by Birdwell to strike his second ground for review that was raised in his brief and presented with the notice of appeal/motion for rehearing. The supplement also contains additional grounds for review on rehearing as well as additional argument to grant mandamus relief. Birdwell's motion to strike his second ground for review is granted. The motion for rehearing in case number 10-06-00385-CR is granted. The Court notes that based on the record(s) before us in the plethora of proceedings, we are unable to determine if there is any biological material subject to DNA testing and whether the statute regarding DNA testing of such material, if any, has been met. Further, we note that the most recent motion for DNA testing has been on file for well over six months without a ruling. The Court requests a response to Birdwell's petition for writ of mandamus, the first ground for rehearing raised in his brief on motion for rehearing, and to the additional grounds raised in his supplement within 28 days from the date of this opinion and order.