Opinion
No. 10-03-00253-CR
Opinion delivered and filed September 7, 2005. DO NOT PUBLISH.
Appeal fromthe 54th District Court, McLennan County, Texas, Trial Court No. 1984-482-C. Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
John Wilkins 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. 2004-05)). The trial court denied Wilkins's motion by written order as follows:
Came on to be considered on June 20, 2003, that certain document designated by the defendant as follows:
MOTION FOR FORENSIC DNA TESTING
and after review of same, the Court is of the opinion that the same should be, and is in all respects DENIED.Wilkins contends that the court erred by failing to appoint counsel as required by statute. Under the version of article 64.01(c) applicable to Wilkins's case, "if 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 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003). Wilkins's motion satisfied the requirement of informing the court. See Winters v. Presiding Judge of Crim. Dist. Ct. No. 3 of Tarrant County, 118 S.W.3d 773, 775 (Tex.Crim.App. 2003); Rodgers v. State, No. 10-02-00080-CR, 2004 Tex. App. LEXIS 2330, at *2-3 (Tex.App.-Waco March 10, 2004, no pet.) (not designated for publication). Under the literal reading of the statute, the defendant need not ask to be appointed an attorney; the court must appoint an attorney if the two basic requirements of article 64.01(c) are met. Winters, 118 S.W.3d at 775. The merits of the request for DNA testing are irrelevant to this inquiry. Id. We abated this appeal for a determination of Wilkins's indigency and, in the event the trial court found him indigent, appointment of counsel. Wilkins v. State, No. 10-03-00253-CR, (Tex.App.-Waco Nov. 12, 2004, order). The trial court found him indigent and appointed counsel to represent Wilkins in appealing the court's denial of his motion for DNA testing. Wilkins argues on appeal that the trial court erred by not determining Wilkins's indigency and appointing counsel to assist him in filing his initial motion for DNA testing. Appointment of counsel was mandatory under the version of article 64.01(c) applicable to Wilkins's case. Winters, 118 S.W.3d at 774. The State responds by arguing that Wilkins does not have a remedy by appeal. The State cites Winters and Neveu v. Culver for the proposition that mandamus, not direct appeal, is the appropriate relief when the trial court fails to appoint counsel. See Winters, 118 S.W.3d at 775 (Chapter 64 does not provide for an appeal regarding indigence or the appointment of counsel under 64.01(c)); Neveu v. Culver, 105 S.W.3d 641, 643 (Tex.Crim.App. 2003) (Because Chapter 64 does not provide for appeal of a trial court's finding regarding indigency or appointment of counsel, mandamus was appropriate.) The State's argument is not persuasive. Wilkins has not appealed a trial court's order regarding indigency or appointment of counsel. Rather, he appeals from an order of the court denying his motion for DNA testing based on findings under former article 64.03. Wilkins is complaining that he was without counsel at the time the findings were made. The issue he raises is within the scope of the appeal authorized by former article 64.05. The trial court erred by denying Wilkins's motion for DNA testing without determining whether Wilkins was indigent and whether he was entitled to appointment of counsel. The court has since determined that Wilkins is indigent and is thus entitled to appointed counsel to assist him in his DNA motion. Thus, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
The 2001 version of the statute applies because Wilkins filed his motion in June 2003. 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 as Sept. 1, 2003).
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. 2004-05).
Before it was amended in 2003, article 64.05 of the Code of Criminal Procedure stated that (except in capital cases) "[a]n appeal of a finding under Article 64.03 or 64.04 is to a court of appeals. . . ." Act of 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003). Both Winters and Neveu dealt with motions filed before the 2003 amendments to Chapter 64.