FRY v. STATE

LIVINGSTON, J. filed a dissenting opinion in which WALKER, J. joins.

I respectfully dissent to the majority opinion. The majority decided that we have no jurisdiction over this appeal and must dismiss. It has concluded that the trial court's order denying Appellant the appointment of counsel and finding that no evidence of biological material is available is an interlocutory and therefore non-appealable order. I respectfully believe that article 64.05 and the court of criminal appeals' directives found in its Kutzner opinion dictate a different conclusion. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2003); Kutzner v. State, 75 S.W.3d 427 (Tex.Crim.App. 2002).

In Kutzner, the court determined that it had jurisdiction over a capital appellant's request for DNA testing and held that a convicting court's "findings," for purposes of appeals under article 64.05, extend to any determinations under 64.03. Kutzner, 75 S.W.3d at 434. It also concluded that the limitation of appellate review to mere "findings" would be inconsistent with the legislative purpose of providing convicted persons "full access to the courts" and to "provid[ing] a check on individual courts' [sic] decisions." Id. at 434-35. The court further directed that there should be no distinction in such person's rights to appeal based solely upon the convicting court's label of "findings" or "conclusions of law" because that could result in different treatment of similarly situated people. Id. at 435. Since any determination by the convicting court under chapter 64 is reviewable by appeal, it follows that a trial court's failure to appoint counsel when the appellant has met the sole two requirements for counsel is error subject to direct appeal. Some of the other intermediate courts have held similarly.

In Clark v. State, the Beaumont Court of Appeals held that there are only two requirements to appointment of counsel: 1) a request and 2) indigence. 84 S.W.3d 313, 314 (Tex.App.-Beaumont 2002, pet. ref'd). Once a convicted person meets these two requirements, the appointment of counsel is mandatory. Id. The Beaumont court noted that the appellant had been denied counsel at the "stage clearly mandated" by chapter 64. Id. The court held that the failure to make such an appointment, even when appellant had filed a pro se motion, failed to comply with the statute and that such failure affected appellant's substantial rights requiring reversal on direct appeal. Id.; see Tex.R.App.P. 44.2(b).

Similarly, the Houston First District Court of Appeals held that a convicting court's denial of an evidentiary hearing on appellant's motion for DNA testing could be reviewed on appeal even absent express findings or determinations on the merits. Thompson v. State, 95 S.W.3d 469, 471 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Citing to Kutzner, the court noted that the court of criminal appeals had "explicitly `rejected' a `narrow and hypertechnical construction of Article 64.05.'" Id. While the court ultimately determined that there is no statutory hearing requirement at the initial 64.03 stage, it clearly held that it had jurisdiction on direct appeal to review the trial court's findings, "express or implied." Id.

Despite this, the majority, following the Rodriguez opinion and rationale, will require an indigent convicted person who has no counsel, and quite likely no access to a record, to file a mandamus proceeding seeking to compel the trial court to comply with its ministerial duty to appoint counsel. See In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.-Corpus Christi 2002, orig. proceeding); Cravin v. State, 95 S.W.3d 506, 508 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (holding appellate review was proper regarding trial court's denial of DNA testing after State responded the evidence did not exist proper). I believe that requiring such indigent convicted person to pursue mandamus when the statute clearly contemplates direct appeal of all chapter 64 determinations turns the statute on its head and denies direct appeals to those without counsel while allowing those who had counsel, appointed or otherwise, to appeal the court's determinations. Surely, a convicting court's denial of appointed counsel after the convicted person has met the two requirements is tantamount to the denial of the motion itself, regardless of the merits.

Additionally, it is important to note that in this case the convicting court's order states, "[t]he Court finds that there exists no evidence containing biological material available in this case to be tested. Accordingly, the Court denies the defendant's request for counsel to file a motion for forensic DNA testing." This "finding" of "no evidence" is clearly a "determination" under chapter 64, mandating direct review under article 64.05.

For these reasons, I believe this court has jurisdiction and should submit the case and reverse and remand for appointment of counsel.

DAUPHINOT, J. filed a dissenting opinion joining LIVINGSTON, J.'s dissenting opinion.Page 616

I join Justice Livingston's dissent. I write only to emphasize that contrary to the majority's assertion that "the trial court has not ruled upon a request for forensic DNA testing," the trial court's order provided:

The Court finds that there exists no evidence containing biological material available in this case to be tested. Accordingly, the Court denies the defendant's request for counsel to file a motion for forensic DNA testing.

The trial court could not have entered a "no-evidence" finding without reaching the merits of the case, and the trial court used this substantive finding to retroactively justify violating Appellant's right to counsel. This finding is clearly a final determination; thus, we have jurisdiction to review this case under chapter 64.