Lewis W. Barnes v. State ( 2009 )

Affirmed and Memorandum Opinion filed November 17, 2009.

In The

Fourteenth Court of Appeals

NO. 14-08-00930-CR

Lewis W. Barnes, Appellant

v.

The State of Texas, Appellee

On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 486906

MEMORANDUM OPINION

Appellant Lewis W. Barnes pleaded guilty to attempted capital murder and was sentenced to forty years’ incarceration.  Twenty years later, appellant filed a motion for post-conviction DNA analysis, which was denied by the trial court.  In a single issue, appellant asserts that the trial court abused its discretion by refusing to appoint counsel to assist him with his motion for post-conviction DNA analysis.  We affirm.

I.  Background

In November 1987, appellant pleaded guilty to attempted capital murder and, pursuant to a plea agreement with the State, was sentenced to forty years’ incarceration.  On January 7, 2008, appellant requested appointment of counsel pursuant to Chapter 64 of the Texas Code of Criminal Procedure, but the trial court denied this request.  See Barnes v. State, No. 14-08-00304-CR, 2008 WL 1991777 (Tex. App.—Houston [14th Dist.] May 8, 2008, no pet.) (mem. op., not designated for publication).  He attempted to appeal the trial court’s denial of his request for counsel.  Id.  But on May 8, 2008, this court dismissed his appeal for want of jurisdiction because his notice of appeal was filed late and his appeal did not fall within any of the exceptions to the general rule that appeal may be taken only from a final judgment.  Id.  One of these exceptions is that an appeal may be taken from the trial court’s denial of a motion for post-conviction DNA testing.  Id. (citing Tex. Code Crim.  Proc. Ann. art. 64.05 (Vernon 2006)).

On August 11, 2008, appellant filed a pro se motion for post-conviction forensic DNA testing, in which he stated, among other things, that “an UZI machine gun” and ammunition from his 1987 conviction had not been subjected to DNA testing because DNA testing was not available in 1987.  He renewed his request for the appointment of counsel at the end of his motion.  The trial court denied this motion on August 26, 2008.  Appellant filed a pro se notice of appeal on September 16, 2008.  This court abated his appeal in October 2008 for a hearing to determine whether appellant desired to continue his appeal, and if so, whether he was indigent and entitled to appointment of counsel.  The trial court conducted a hearing pursuant to the abatement order in November and found that (1) appellant desired to prosecute his appeal, (2) appellant was indigent, and (3) appellant was entitled to appointed counsel and a free record to prosecute his appeal.  The trial court then appointed counsel to represent appellant in prosecuting his appeal, and this appeal was reinstated.

II.  Issue Presented

In a single issue, appellant contends that the trial court abused its discretion by refusing to appoint counsel to assist him in seeking post-conviction forensic DNA testing.

III.  Analysis

Article 64.01(c) provides that a trial court

shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under [Chapter 64], 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. 2008) (emphasis added).  The legislature has not defined “reasonable grounds” within the statute.  Other courts considering this issue have looked to the procedural requirements of Chapter 64 to determine whether a defendant has established “reasonable grounds” for a motion to be filed.  See Blake v. State, 208 S.W.3d 693, 695–96 (Tex. App.—Texarkana 2006, no pet.) (concluding that because the trial court had evidence no biological material still existed to submit for DNA testing, trial court properly denied appointment of counsel because there were no reasonable grounds for a Chapter 64 motion to be filed); Lewis v. State, 191 S.W.3d 225, 229  (Tex. App.—San Antonio 2005, pet. ref’d) (“Because Lewis’[s] motion for post[-]conviction DNA testing fails to meet two of the preconditions to obtaining DNA testing under Chapter 64, specifically that the evidence still exists and that identity is or was an issue in the case, it also fails to demonstrate ‘reasonable grounds for a motion to be filed.’”). 

At the time that the trial court denied appellant’s initial request for appointed counsel,[1] the only information before it was the request itself; appellant had not yet filed his motion for post-conviction forensic DNA testing.  Appellant’s “Request for Appointment of Counsel Pursuant to Article 64 of the Code of Criminal Procedure” states:

COMES NOW, Defendant Lewis Wesely [sic] Barnes . . . and request[s] appointment of counsel to assist Defendant in obtaining an order for DNA testing from the court pursuant to Article 64.01(c), Code of Criminal Procedure[.]  Defendant wishes to submit a Motion to Chapter 64 [sic] requesting DNA testing, because DNA was not available 64.01 1 (A) (i) [sic], and defendant is ind[i]gent.  An affidavit of indigency is attached and incorporated hereto [as] Exhibit 1.

The trial court denied this request without stating a reason for the denial.  In his later-filed motion for DNA testing, appellant again requested appointed counsel.  In this motion, as stated above, appellant requested DNA testing on an UZI machine gun and ammunition.  But appellant did not identify any evidence containing biological material.  See Tex. Code Crim. Pro. Ann. art. 64.01(a) (providing that convicted person may submit motion for forensic DNA testing of evidence containing biological material). Instead, he complained that “tests” were run but no DNA analysis was performed.  The tests to which appellant referred appear to be a gunshot residue test on his hands and perhaps some sort of ballistics or finger print tests on the machine gun,[2] neither of which would be subject to forensic DNA testing.

            Because appellant did not identify any evidence containing biological material in his motion for post-conviction DNA testing, he did not demonstrate “reasonable grounds” for the motion to be filed.  Cf. Blake, 208 S.W. 3d at 695–96; Lewis, 191 S.W.3d at 229.  Thus, the trial court was not required to appoint counsel to represent him, and we overrule his sole issue on appeal.

IV.  Conclusion

Appellant has not established reasonable grounds to file a motion for post-conviction forensic DNA testing.  We affirm the trial court’s order.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.

Do Not Publish — Tex. R. App. P. 47.2(b).

---

[1] As noted supra, this court dismissed appellant’s appeal of the denial this request for want of jurisdiction because appellant’s notice of appeal was late and there was no appealable order in the record.  See Barnes, 2008 WL 1991777, at *1.  Since that dismissal, appellant has filed a motion for DNA testing, which has been denied by the trial court and timely appealed.  The State argues that there is no request for appointment of counsel in the record for this appeal, but we may take judicial notice of the record of the prior case, which contains the request.  See Ex parte Smith, 178 S.W.3d 797, 805 n.36 (Tex. Crim. App. 2005) (“The trial court (and this Court) may take judicial notice of papers and pleadings filed in the case.”); Goodson v. State, 221 S.W.3d 303, 304 n.2 (Tex. App.—Fort Worth 2007, no pet.) (noting that appellate court may judicially notice its own records in the same or related proceeding involving the same or nearly the same parties) (citing Turner v. State, 773 S.W.2d 218, 221–22 (Tex. Crim. App. 1987) (en banc)). Moreover, as noted above, the motion for DNA testing itself contains another request for the appointment of counsel.

[2] Appellant states in his motion,

A weapon, UZI Machine Gun along with ammunition which was not dusted for prints, which is [in] police custody.  Biological test[s] were performed on Defendant[’]s hands, but were not analyzed, because DNA was not available in 1987.

. . .

The police did an examination of his hands so that they could determine whether he had fired a gun or weapon.  The test[s] were not anal[y]zed.  The uzi machine gun w[as] obtain[ed] by the police so that they could run test[s] and see who fired the weapon.  The evidence collected forensic evidence [sic] that the weapon contained but never anal[y]zed, because in 1987 they did not p[er]form[] DNA testing.

In his affidavit, appellant specifies that a “weapon and ammunition” should be subject to forensic DNA testing. He states, “There is a reasonable probability that . . . Forensic DNA Testing will show that the weapon did not belong to me or will show that my prints are not on the firing mechanism.”