      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00183-CR




                                       In re A. D. Bowman




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
          NO. 13,395-B, HONORABLE CURT F. STEIB, JUDGE PRESIDING



                              MEMORANDUM OPINION


                A. D. Bowman appeals the district court’s order “dismissing [his] motion for forensic

DNA testing.” We will affirm the order.

                Bowman was convicted of aggravated sexual assault and sentenced to forty years’

imprisonment in 1983. In October 2003, Bowman filed a pro se request for appointment of counsel

stating that he wished to file a motion for DNA testing. See Tex. Code Crim. Proc. Ann. art.

64.01(c) (West Supp. 2005). In December 2003, in order to determine if there were “reasonable

grounds for a motion to be filed” and thus to appoint counsel, the district court asked the district

attorney to investigate and report whether any biological evidence existed on which DNA testing

would be possible. See id. On February 27, 2004, Bowman filed a pro se motion for DNA testing.

See id. art. 64.01(a), (b).

                On February 13, 2006, the office administrator for the district attorney advised the

court in writing that neither the district attorney nor the police department had possession of any
evidence collected during the investigation of this offense. Two days later, the district court signed

the order now on appeal. In its order, the court found that semen evidence was used at Bowman’s

trial in 1983, but that no evidence is presently available for DNA testing. Although the order

purports to dismiss Bowman’s pro se motion for DNA testing, the effect of the order is to deny the

motion on a finding that no biological evidence suitable for DNA testing still exists. See id. art.

64.03(a)(1)(A)(I).

               In his pro se brief, Bowman urges that the trial court erred by failing to appoint him

counsel before ruling on his testing motion, citing Clark v. State, 84 S.W.3d 313, 314 (Tex.

App.—Beaumont 2002, pet. ref’d). Clark is not on point because it was decided before the 2003

amendment of article 64.01. Under 64.01 as originally enacted, the appointment of counsel was

mandatory if the convicted person was indigent. Neveu v. Culver, 105 S.W.3d 641, 642 (Tex. Crim.

App. 2003). But as amended before Bowman requested counsel, article 64.01(c) requires the

appointment of counsel only if the trial court finds reasonable grounds for a testing motion to be

filed. Bowman’s request for counsel did not contain any recitals of fact that would support a finding

of reasonable grounds. And in light of the undisputed finding that no evidence suitable for DNA

testing presently exists, the trial court did not reversibly err by failing to appoint counsel before

ruling on Bowman’s pro se testing motion.

               Although he does not present this contention as a separate point of error, we also

understand Bowman to assert that the State’s failure to preserve the biological evidence denied him

due course of law. See Pena v. State, 166 S.W.3d 274, 281 (Tex. App.—Waco 2005), vacated, 191

S.W.3d 133, 138 (Tex. Crim. App. 2006). In Pena, a prosecution for possession of marihuana, the



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alleged contraband was destroyed before the defendant’s trial and without giving the defense an

opportunity to conduct its own testing. Id. at 276-77. There is a clear distinction between the

destruction of evidence before the defendant’s trial and the failure to preserve evidence twenty years

after trial. The statute requiring the preservation of biological material was not adopted until 2001,

the same year chapter 64 was enacted. See Tex. Code Crim. Proc. Ann. art. 38.43 (West Supp.

2005). Under the circumstances shown by this record, we conclude that the State did not deny

Bowman due course of law by failing to preserve the biological evidence gathered in 1983.

               The district court’s order is affirmed.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: October 6, 2006

Do Not Publish




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