
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-01-480 CR

____________________


TOMMY WAYNE CLARK, aka WAYNE CLARK, Appellant


V.


THE STATE OF TEXAS, Appellee




On Appeal from the 284th District Court
Montgomery County, Texas

Trial Cause No. 87-07-00530-CR




O P I N I O N
 On June 4, 2001, Tommy Wayne Clark filed a motion for DNA testing pursuant to
Chapter 64 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann.
arts. 64.01-.05 (Vernon Supp. 2002).  On July 31, 2001, Clark filed a motion for
appointment of counsel and declaration of indigency.  The trial court denied Clark's
motion for DNA testing on October 8, 2001.  Clark executed a notice of appeal from that
order on October 19, 2001; it was filed on October 23.  The trial court signed an order
appointing counsel on October 22, 2001.  Appointed counsel filed a motion for new trial
which was overruled by operation of law.  See Tex. R. App. P. 21.8.
	Clark appeals from the trial court's order denying his motion for DNA testing.  He
first argues the trial court erred in failing to appoint counsel during the proceeding. 
 Chapter 64 of the Texas Code of Criminal Procedure created a procedure for
convicted persons to obtain DNA testing of evidence containing biological material. See
Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2002).  Clark was convicted
in the 284th District Court of Montgomery County, Texas, in Cause No. 87-07-00530-CR. 
The State of Texas agrees Clark is indigent and that appointment of counsel is mandatory. 
The State argues that because Clark had already filed a pro se motion for DNA testing, the
need for an attorney was moot.
	The Code of Criminal Procedure provides, in pertinent part: 
	(c) A convicted person is entitled to counsel during a proceeding under this
chapter. If a convicted person informs the convicting 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. . . .

Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2002).
	Article 64.01(c) states that a convicted person is entitled to counsel in a proceeding
for DNA testing.  The only requirements for appointment of counsel are:  1) a request for
counsel and 2) indigence.  Once a convicted person meets those requirements, appointment
of counsel is mandatory.  The fact that Clark indicated his wish to submit a motion by
filing such a motion, rather than by letter or some other means, does not alter the clear
requirements of the statute.
	Clark was denied counsel at the stage clearly mandated by Chapter 64.  The trial
court's belated appointment of counsel did not remedy that error.  The error affects a
substantial right and therefore is reversible.  See Tex. R. App. P. 44.2.  In order to place
Clark in the same position he would have been in had the trial court's appointment of
counsel been timely, we reverse the order of the trial court denying Clark's motion for
DNA testing and remand the cause for proceedings consistent with this opinion.
	REVERSED AND REMANDED.

                                                               ________________________________
                                                                           DON BURGESS
                                                                                Justice

Submitted on June 13, 2002  
Opinion Delivered July 24, 2002
Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.
