Opinion
No. 11-18-00061-CR
05-24-2018
RICHARD WAYNE GARZA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court Brown County, Texas
Trial Court Cause No. CR24923
ORDER
Richard Wayne Garza filed a pro se notice of appeal from an order denying his pro se motion for post-conviction forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. ch. 64 (West 2018). In his motion, Garza requested that the trial court appoint counsel to represent Garza in this matter. The trial court found that, at that time, Garza was not entitled to counsel because there were no "reasonable grounds" for DNA testing. See id. art. 64.01(c). The trial court again declined to appoint counsel when it denied Garza's motion. After Garza filed his pro se notice of appeal, the attorney who represented Garza at the time of his conviction, Patrick Howard, was mistakenly informed that he would be carried as Garza's counsel in this appeal because he represented Garza at trial. Howard subsequently filed a docketing statement as requested and has now filed a motion in this court in which he asks that this appeal be suspended and that this cause be remanded to the trial court to address the attorney situation. We note also that Garza has requested that substitute counsel be appointed to represent him in this matter. We abate the appeal.
When there are "reasonable grounds" for a convicted person's filing of a motion for forensic DNA testing, counsel must be appointed to represent that person if he is indigent. Id.; Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011). This statutory right to counsel extends to appeals filed under Article 64.05. Gray v. State, 69 S.W.3d 835, 837 (Tex. App.—Waco 2002, no pet.). Here, however, the trial court found that "no reasonable grounds" existed and that Garza was not entitled to a court-appointed attorney. This abatement does not reflect in any way upon the trial court's "no reasonable grounds" finding.
Howard has requested that this cause be remanded to the trial court to clarify his role as appellate counsel. Accordingly, we abate the appeal and remand the cause to the trial court so that it may address that issue and Garza's request for substitute counsel. We note that appellate courts are not authorized to appoint counsel. The trial court is directed to make appropriate findings and recommendations. The trial court clerk is directed to prepare and forward to this court a supplemental clerk's record containing the findings, recommendations, and any orders of the trial court. If the trial court deems it necessary to conduct a hearing on this matter, the court reporter is directed to prepare and forward to this court the reporter's record from such hearing. The supplemental records are due to be filed in this court on or before June 21, 2018. Garza's brief will be due in this court thirty days after the supplemental clerk's record is filed.
The appeal is abated.
PER CURIAM May 24, 2018 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.