                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00444-CR


NORMAN SPORE BOLTON                                               APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant appeals from the trial court’s order denying postconviction DNA

testing. We affirm.

      In his first issue, appellant contends that he was denied due process

“because the trial court proceeded without first informing appellant his

March 9, 2012, motion had never been filed and had apparently been lost and



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       See Tex. R. App. P. 47.4.
because the trial court did not give appellant an opportunity to file a motion to

substitute for his March 9, 2012, motion.”

      The clerk’s record contains a July 12, 2012 letter from appellant to the

district clerk’s office asking about his second “‘Motion for Appointment of

Counsel’ With Motion to Petition the Court[] for Court Order to Appointed Expert

for DNA Testing.” Appellant noted that he had received no response from the

district clerk’s office as to whether the motions had been filed.

      Although appellant claims that his motion for DNA testing was never filed,

a supplemental clerk’s record filed in this appeal shows that appellant’s

March 9, 2012 motion was filed by the district clerk on March 20, 2012. We

overrule appellant’s first issue.

      In his second issue, appellant contends that he was denied due process

because the court reporter was not excused by agreement of the parties as

required by rule 13.1 of the rules of appellate procedure. Tex. R. App. P. 13.1(a).

      The court of criminal appeals has held that it is an appellant’s burden to

object to the lack of a reporter’s record in the trial court. Davis v. State, 345

S.W.3d 71, 77–78 (Tex. Crim. App. 2011); Valle v. State, 109 S.W.3d 500, 507–

509 (Tex. Crim. App. 2003). Appellant did not do so here. Moreover, chapter 64

of the code of criminal procedure does not require a trial court to hold an

evidentiary hearing before ruling on a motion for DNA testing.              Ex parte

Gutierrez, 337 S.W.3d 883, 893 (Tex. Crim. App. 2011).              The order denying

appellant’s motions states only that the motion was presented to the court;


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nothing in the record indicates that the trial court held an evidentiary hearing on

appellant’s motions.      Accordingly, there were no proceedings for the court

reporter to record. Id. at 892 (“[A] person’s effort to secure testing under Chapter

64 does not involve any constitutional considerations.”); cf. Michiana Easy Livin’

Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (“What is clear is that a

reporter’s record is required only if evidence is introduced in open court; for

nonevidentiary hearings, it is superfluous. If all the evidence is filed with the clerk

and only arguments by counsel are presented in open court, the appeal should

be decided on the clerk’s record alone.” (footnotes omitted)).          We therefore

overrule appellant’s second issue.

         Having overruled both of appellant’s issues, we affirm the trial court’s

order.




                                                     TERRIE LIVINGSTON
                                                     CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013




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