Rodgers v. State

Full title: BOYD RODGERS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 10, 2004

No. 10-02-00080-CR (Tex. App. Mar. 10, 2004)

Opinion

No. 10-02-00080-CR.

Opinion delivered and filed March 10, 2004. DO NOT PUBLISH.

Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 92-235-C. Reversed and remanded.

Stan Schwieger, Law Office of Stan Schwieger, Waco, TX, for appellant/relator. John W. Segrest, McLennan County District Attorney, Waco, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.³

3 This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Boyd Rodgers filed a pro se motion for postconviction DNA testing and appointment of counsel under article 64.01 of the Code of Criminal Procedure. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.01 (Vernon Supp. 2004)).¹ The trial court denied Rodgers's motion by written order as follows:

Came on to be considered on March 1, 2002, that certain document designated by the defendant as follows:

PETITION REQUEST FOR DNA TESTING, APPOINTMENT OF COUNSEL and after review of same, the Court is of the opinion that the same should be, and is in all respects DENIED.

Rodgers contends that the court erred by denying his request for postconviction DNA testing on its merits without first appointing counsel. The State responds that no error is shown because the motion for DNA testing is "patently frivolous" on its merits. Under the version of article 64.01(c) applicable to Rodgers's case, "[i]f a convicted person informs the 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, 2001 Tex. Gen. Laws 2, 3 (amended 2003). Rodgers's "petition" satisfies these requirements. Accordingly, appointment of counsel is mandatory. Winters v. Presiding Judge of Crim. Dist. Ct. No. 3 of Tarrant County, 118 S.W.3d 773, 775 (Tex.Crim. App. 2003). The merits of the request for DNA testing are irrelevant to this inquiry.² Id. The trial court erred by failing to appoint counsel to represent Rodgers. Thus, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

1 The 2001 version of the statute applies because Rodgers filed his motion in February 2002. See Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, §§ 8, 9, 2003 Tex. Gen. Laws 16, 17 (establishing effective date for amendments to art. 64.01).

2 We note, however, that the 2003 amendment to art. 64.01(c) expressly permits the trial court to consider whether there are "reasonable grounds for a motion to be filed" in determining whether to appoint counsel. TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (Vernon Supp. 2004).