


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-04-00206-CR
 
Cosme Mendez,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 54th District Court
McLennan County, Texas
Trial Court # 1999-851-C
 

DISSENTING Opinion to
abatement order

 




 
          Without
discussion, the Court rejects the trial court’s determination, implied by the
trial court’s denial of the DNA motion, that the court did not find reasonable
grounds for the motion to be filed.  See Tex.
Code Crim. Proc. Ann. art. 64.01(c) (Vernon Pamp. 2004-2005).  The majority’s reliance on Gray is misplaced.  Gray v.
State, 69 S.W.3d 835 (Tex. App.—Waco 2002, order).  Gray
was decided under the original version of article 64.01(c).  The original version of the statute required
appointment of counsel if 1) the convicted person informs the court that the
person wants to file a motion; and 2) the court determines the person is
indigent.  Act of 2001, 77th Leg., ch. 2,
§ 2, 2001 Tex. Gen. Laws 2, amended by
Act of 2003, 78th Leg., ch. 13, § 1, 2003 Tex. Gen. Laws 16.
          In
apparent response to the flood of requests and related expense for appointed
counsel having to pursue baseless, frivolous, groundless motions, the
legislature amended the statute.  The
amendment added a new criterion to be met before the trial court was required
to appoint counsel:  that “the court
finds reasonable grounds for a motion to be filed.”  Tex.
Code Crim. Proc. Ann. art. 64.01(c) (Vernon Pamp. 2004-2005).  No longer is the trial court required to
appoint counsel just because a defendant has requested DNA testing and has
shown that he or she is indigent.  The
defendant must now provide the trial court sufficient information from which
the trial court can make the finding, required by the statute, that “reasonable
grounds for a motion to be filed” exist.
          The
trial court did not appoint counsel in response to Mendez’s request.  If the request does not affirmatively show a
reasonable ground for making a motion, there is no reason to abate this appeal.  A review of the request for DNA testing not only
does not show a reasonable ground for making the motion, it also affirmatively
negates that any such ground exists.
          Mendez
wants blood on a knife, alleged by the State to have been used in the
aggravated assault for which Mendez was found guilty, to be tested for a
determination that it was not the victim’s blood; ergo, it was not the knife
used in the assault.  And as Mendez’s
argument goes, no knife, no aggravated assault, and no deadly weapon finding;
thus, Mendez gets much less prison time.
          The
problem with Mendez’s request is, at least, threefold.  First, identity must have been an issue for a
request for DNA testing to be meritorious. 
Tex. Code Crim. Proc. Ann.
art. 64.03(a)(1)(B) (Vernon Pamp. 2004-2005).  The issue presented by Mendez is not that his
participation in the assault was an issue, but whether the assault was an
aggravated assault due to the use of a deadly weapon.  The identity of the assailant, Mendez, was
not an issue.  Mendez attacks the
complainant’s inability to identify the knife. 
That is not the issue of identity that will entitle a defendant to a DNA
test.  Id.
          Second,
the request established that the knife, on which the blood is alleged to be
present, was presented as evidence in the trial.  The request does not indicate why Mendez did
not have, or attempt to have, the knife tested during his original trial.  For a motion for DNA testing to have merit,
the defendant must show that the biological material was not previously
subjected to DNA testing “through no fault of the [defendant], for reasons that
are of a nature such that the interests of justice require DNA testing.”  Tex.
Code Crim. Proc. Ann. art. 64.01(b)(1)(B) (Vernon Pamp. 2004-2005).
          Mendez’s
request affirmatively states that he was aware of the knife used as evidence by
the State, knew it had blood on it, and knew that it was never tested for
anything.  Thus Mendez’s request shows a
reasonable ground does not exist because no reason is given for the failure to
conduct his own DNA test at the time of trial.
          Third,
and this may be the most important of the three, even if the DNA test
established that the blood on the knife was not the victim’s, it would not
establish what Mendez asserts that it would. 
Mendez states:  “The movant
expects the DNA test to prove that no weapon was ever involved in the
case.”  This is really the crux of the
entire request for DNA testing.
          But
the DNA test will never be able to prove what Mendez wants it to prove.  At most, it could show that the victim was
not the source of the biological material alleged to be on the knife.  This does not mean that it was not the knife
used, or that no knife was used, or that no offense occurred.  While it could possibly raise an issue
regarding what weapon was used in the assault, in this case, a negative DNA
test result would never be able to establish that Mendez “would not have been
convicted if exculpatory results had been obtained through DNA testing.”  Tex.
Code Crim. Proc. Ann. art. 64.03(a)(2)(A)(Vernon Pamp. 2004-2005).
          Any
of these three reasons would support a determination that the trial court did
not find “reasonable grounds for a motion to be filed.”  Tex.
Code Crim. Proc. Ann. art. 64.01(c) (Vernon Pamp. 2004-2005).
          By
its entire failure to address a need for the trial court to make a preliminary
review of the grounds for making a motion, the Court has judicially removed the
very language the legislature added to avoid the result this case is headed
toward—taxpayer dollars spent for appointed counsel to evaluate a frivolous
request for DNA testing.
          As
to the appointment of an attorney on appeal, I would apply the same analysis of
the amended statute as we applied to the original statute in Gray and hold that a person requesting
DNA testing is only entitled to an attorney on appeal if the person meets the
three requirements discussed above for the appointment of an attorney in the
trial court.  Having determined that
Mendez has failed to make that showing, I would also hold that he is not
entitled to appointed counsel on appeal.
          I
would affirm the trial court’s denial of the request for DNA testing.  Because the Court abates the appeal for a
determination of whether the appointment of trial or appellate counsel is
required, I respectfully dissent.
 
                                                                   TOM
GRAY
                                                                   Chief
Justice
 
Dissenting opinion
delivered and filed December 8, 2004
Publish
 
 
 

