Winston Robinson, III v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-185 CR ____________________

WINSTON ROBINSON III, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause No. 77001

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MEMORANDUM OPINION

Winston Robinson III filed a motion for post-conviction DNA testing. The trial court denied the motion and Robinson filed this appeal. Robinson argues the trial court erred in denying his request for court-appointed counsel. Article 64.01(c) of the Code of Criminal Procedure provides as follows:

A convicted person is entitled to counsel during a proceeding under this chapter. The convicting court shall appoint counsel for the convicted person 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) (Vernon Supp. 2005). Robinson informed the court in his pro se pleading he was indigent and he wished to submit a motion under Chapter 64. Robinson asked for appointment of counsel. His pro se motion states he was convicted of aggravated sexual assault and biological evidence was obtained in relation to the offense. The motion says the evidence was not DNA tested; his "unsworn affidavit" says the evidence was "purportedly tested." The record does not reveal the trial court appointed trial counsel.   

Article 64.02 provides that on receipt of the motion, the convicting court shall:

(1) provide the attorney representing the state with a copy of the motion; and

(2) require the attorney representing the state to:

(A) deliver the evidence to the court, along with a description of the condition of the evidence; or

(B) explain in writing to the court why the state cannot deliver the evidence to the court.

Tex. Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. 2005). If the evidence is not delivered, the State must provide the court a written explanation for the failure to produce the evidence. Here, the record contains a letter of explanation from the assistant criminal district attorney to the trial court. The contents are set out below:

March 24, 2004

Criminal District Court

ATTN: Renee

RE: State of Texas vs Winston Robinson

Cause No. 77001

It appears that the District Attorney's Office filed notice of intent to destroy evidence on October 7, 2002 in the above-referenced case. There was no objection filed to that motion. See copy enclosed.

The defendant in this cause entered a plea of guilty supported by a confession and therefore cannot meet the threshold requirements of a post-conviction DNA testing motion.^{[ (1)]}

The document enclosed with the letter, and labeled cause no. 77001, states as follows:

NOTICE OF INTENT TO DESTROY EVIDENCE

On this the 7 day of October 2002 the undersigned Assistant Criminal District Attorney, at the conclusion of the proceedings in the above-captioned and numbered cause on the foregoing date hereby certifies that written notice has been given to (1) the defendant, (2) the defendant's counsel of record, and (3) the convicting court, by hand delivery of a copy of this Notice of Intent to Destroy Evidence to the foregoing individuals and court, of the intent of the State of Texas to destroy any and all evidence, which may be in the possession of the attorney representing the State of Texas or a clerk or any other person possessing said evidence in the above-captioned and numbered cause, at any time after the expiration of ninety-one days from the foregoing date.

The Notice is signed by an assistant criminal district attorney.

The trial court's order, set out below, specifies the reason for denying Robinson's motion for DNA testing and, implicitly, for not appointing counsel:

On this the 31^st day of March, 2004, after considering the Defendant's motion for DNA testing, at the time of sentencing the State filed notice of intent to destroy evidence and there has been no objection filed on that motion, so therefore it is the decision of the Court that the request for DNA testing be denied.

The clerk is ordered to send a copy of this order to the Petitioner and file the original in the Court's file.

Entered this the 31^st day of March, 2004.

Based on the "Notice of Intent to Destroy Evidence" and the lack of any objection to that Notice, the trial judge apparently concluded the evidence does not exist. Obviously if no biological evidence exists, there would be no reasonable grounds for DNA testing and no necessity for appointment of counsel. See Tex. Code Crim. Proc. Ann. arts. 64.01, 64.03(a)(1)(A)(i) (Vernon Supp. 2005).

A Texas statute provides that "evidence containing biological material" may be destroyed only if proper notification by mail is given and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court "before the 91^st day after the later of the following dates: (1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or (2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant." See Tex. Code Crim. Proc. Ann. art. 38.39 (Vernon Supp. 2005). The letter from the assistant district attorney says "[i]t appears" the District Attorney's office filed the notice. The "Notice of Intent to Destroy Evidence" here does not necessarily establish the evidence no longer exists; the Notice evidences an intent at some point to destroy the evidence.   

The statute requires appointment of counsel if the trial court finds reasonable grounds for a motion for DNA testing to be filed. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2005). Here, the order, in effect, finds no reasonable grounds and no need to appoint counsel, because the trial court concluded there is no evidence to test. The State's response nowhere states the evidence was destroyed. In its brief on appeal, the State says "it is in agreement that the appeal be abated and the case remanded to the convicting court for a determination of whether Appellant is indigent and whether reasonable grounds for a Motion for Post-Conviction DNA Testing exists pursuant to law." Issue one is therefore sustained. We need not address the second issue, as the first is dispositive of this appeal. We reverse and remand for further proceedings pursuant to the statute.

REVERSED AND REMANDED.

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DAVID GAULTNEY

Justice

Submitted on January 31, 2005

Opinion Delivered February 9, 2005

Do Not Publish

Before McKeithen, Gaultney, and Horton, JJ.

1. Article 64.03(b) provides that "[a] convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea." Tex. Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2005). No "confession" or other evidence indicating that identity was not an issue in the case is contained in the record.