Order issued September 4, 2014




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00167-CR
                           ———————————
                       ABRAHAM CAMPOS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 149th District Court
                          Brazoria County, Texas
                       Trial Court Case No. 26947-3


                                    ORDER

      Appellant, Abraham Campos, appealed from the trial court’s order denying

his motion for post-conviction forensic DNA testing. See TEX. CODE CRIM. PROC.

ANN. art. 64.01(a-1) (West Supp. 2014).       On July 9, 2014, appellant filed a

“Motion to Abate the Appeal.” In his motion, appellant requests that we abate this
appeal and order the trial court to hold a hearing on his “status as an indigent

person, and thereafter appoint counsel to represent him in this appeal.” We deny

the motion.

                                  Background

      On January 6, 2014, appellant filed a “Request to Conduct Forensic

Evidence DNA Testing Under Article 64.01(a-1), Texas Code of Criminal

Procedure,” seeking post-conviction DNA testing of evidence from his criminal

conviction. In the affidavit accompanying his motion, appellant stated that he is

indigent and requested that an attorney “be appointed during these proceedings” to

represent him.

      The trial court denied appellant’s motion on February 6, 2014. In its order,

the trial court found that appellant failed to establish by a preponderance of the

evidence that appellant would not have been convicted if additional DNA testing

was conducted. The trial court also found that appellant “failed to meet his burden

to show reasonable grounds for appointment of counsel as required under Article

64.01(c) of the Code of Criminal Procedure” and denied appellant’s request for

appointment of counsel.




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      On February 24, 2014, appellant filed a notice of appeal and an affidavit of

indigency, seeking appointed counsel to represent him on appeal. The trial court

denied the request on February 25, 2014.

      On July 9, 2014, appellant filed his motion to abate, requesting that we abate

this case and order the trial court to hold a hearing on his indigence, find him

indigent, and appoint counsel to represent him in this appeal.

                                     Analysis

      There is no constitutional right to appointed counsel in a proceeding under

Chapter 64 of the Texas Code of Criminal Procedure. See Hughes v. State, 135

S.W.3d 926, 927 (Tex. App.—Dallas 2004, pet. ref’d).

      Nevertheless, there is a statutory right to appointed counsel in a Chapter 64

proceeding. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c); Ex parte Gutierrez,

337 S.W.3d 883, 889 (Tex. Crim. App. 2011); Gutierrez v. State, 307 S.W.3d 318,

321, 322 (Tex. Crim. App. 2010). “A convicted person is entitled to counsel

during a proceeding under” Chapter 64 “if the person informs the court that the

person wishes to submit a motion under this chapter, the court finds reasonable

grounds for a motion to be filed, and the court determines that the person is

indigent.” TEX. CODE CRIM. PROC. ANN. art. 64.01(c).




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      Prior to 2003, the statutory right to appointed counsel was absolute for any

indigent person who either filed or expressed a desire to file a motion for forensic

DNA testing under Chapter 64. See Ex parte Gutierrez, 337 S.W.3d at 889 &

n.10; Gutierrez, 307 S.W.3d at 322 & n.26; Gray v. State, 69 S.W.3d 835, 837

(Tex. App.—Waco 2002, no pet.). The legislature, however, amended the statute

in 2003 to restrict the right to appointed counsel in Chapter 64 proceedings. See

Act of April 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003 Tex. Gen. Laws 16, 16; Ex

parte Gutierrez, 337 S.W.3d at 889; Gutierrez, 307 S.W.3d at 322. Thus, in

Chapter 64 proceedings filed after the legislative amendment, “[a]n indigent

convicted person intending to file a motion for post-conviction DNA testing . . .

has a limited [statutory] right to appointed counsel,” which is “conditioned on the

trial judge’s finding ‘that reasonable grounds exist for the filing of a motion.’” Ex

parte Gutierrez, 337 S.W.3d at 889 & n.10 (quoting Gutierrez, 307 S.W.3d at

321); see Gutierrez, 307 S.W.3d at 321, 322 (holding that entitlement to appointed

counsel is not absolute and that appointment of counsel is dependent, in part, on

trial judge’s discretion). Statutory entitlement to appointed counsel for a person

“intending to file a motion for post-conviction DNA testing” is now conditioned on

three criteria: (1) “the convicted person must inform the trial judge that he or she

wants to submit a motion;” (2) “the trial judge must find that ‘reasonable grounds’

exist for the filing of a motion;” and (3) “the trial judge must find that the


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convicted person is indigent.” Gutierrez, 307 S.W.3d at 321; see TEX. CODE CRIM.

PROC. ANN. art. 64.01(c).      Thus, a convicted person who fails to show that

reasonable grounds exist for the filing of a Chapter 64 motion is not entitled to

appointed counsel. See Ex parte Gutierrez, 337 S.W.3d at 890–95; Harris v. State,

No. 01-10-00171-CR, 2011 WL 662955, at *1–2 (Tex. App.—Houston [1st Dist.]

Feb. 17, 2011, pet. ref’d).

      An appeal from the denial of a Chapter 64 motion is governed by article

64.05. See TEX. CODE CRIM. PROC. ANN. art. 64.05 (“An appeal under this chapter

is to a court of appeals . . . .”). Such an appeal is therefore “a proceeding under”

Chapter 64, and the conditions for appointment of counsel on appeal are the same

as the conditions for appointment of counsel in the trial court. See id. art. 64.01(c).

We therefore hold that, when a convicted person files a Chapter 64 motion and the

trial court finds that the person failed to demonstrate reasonable grounds for filing

the motion, the person is not entitled to appointed counsel to assist with any

“proceeding under” Chapter 64, including an appeal. See TEX. CODE CRIM. PROC.

ANN. arts. 64.01(c), 64.05; Ex parte Gutierrez, 337 S.W.3d at 889; Gutierrez, 307

S.W.3d at 321, 322.

      Here, the trial court found that appellant failed to show reasonable grounds

for filing a motion for DNA testing.        See TEX. CODE CRIM. PROC. ANN. art.



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64.01(c). Appellant is therefore not entitled to appointed counsel to represent him

on appeal.

      Accordingly, we deny appellant’s motion.

It is so ORDERED.




                                            Sherry Radack
                                            Chief Justice




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