In Re: Donny L. Bretz--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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) No. 08-03-00068-CR

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IN RE: DONNY L. BRETZ ) AN ORIGINAL PROCEEDING

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) IN MANDAMUS

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MEMORANDUM OPINIONON WRIT OF MANDAMUS

Donny L. Bretz seeks a writ of mandamus compelling the trial court to appoint counsel for him in a proceeding for forensic DNA testing. For the reasons that follow, we will dismiss the petition.

Procedural Background

Bretz filed a motion for appointment of counsel to assist him in preparing a motion for forensic DNA testing. On July 15, 2002, the trial court signed an order denying the motion for appointment of counsel. On July 31, 2002, Bretz filed a notice of appeal from this order. Attached to the notice of appeal was a ADeclaration of Inability to Pay Cost,@ stating that Bretz=s only asset is an inmate trust fund containing $15, and the only income he receives is approximately $5 per month from relatives and friends. The notice of appeal contains the handwritten notation A8/20/02 Denied.@

Bretz subsequently filed a petition for writ of mandamus in this Court. He argues that the trial court abused its discretion by denying the motion for appointment of counsel.[1] We ordered the State to file a response to the petition. Although the State did not file a response, the trial court forwarded to this Court an order appointing counsel for Bretz.

Discussion

To obtain mandamus relief in a criminal matter, the relator must establish that (1) the act sought to be compelled is ministerial, and (2) there is no adequate remedy at law. Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987).

A convicted person is entitled to counsel during a proceeding for forensic DNA testing. Tex.Code Crim.Proc.Ann. art. 64.01(c)(Vernon Supp. 2003). AIf a convicted person informs the convicting court that the person wishes to submit a motion [for forensic DNA testing] and if the court determines that the person is indigent, the court shall appoint counsel for the person.@ [Emphasis added]. Id. The convicted person does not need to make a prima facie case of entitlement to DNA testing before the right to counsel attaches. In re Rodriguez, 77 S.W.3d 459, 461 (Tex.App.--Corpus Christi 2002, orig. proceeding). The only requirements for the appointment of counsel are a request for counsel and indigence. Id.; accord Clark v. State, 84 S.W.3d 313, 314 (Tex.App.--Beaumont 2002, pet. ref=d); Gray v. State, 69 S.W.3d 835, 837 (Tex.App.--Waco 2002, no pet.). Once a convicted person meets those requirements, the trial court has a ministerial duty to appoint counsel. Rodriguez, 77 S.W.3d at 461.

There is no appeal from an order refusing to appoint counsel in a forensic DNA proceeding. McIntosh v. State, 10-01-00409-CR to 10-01-00418-CR, slip op. at 1, 2002 WL 31779905, at *1 (Tex.App.--Waco, Dec. 11, 2002, no pet. h.); see also Tex.Code Crim.Proc.Ann. art. 64.05 (setting forth the matters that may be appealed). Therefore, there is no adequate remedy at law. See, e.g., Rodriguez, 77 S.W.3d at 461 (conditionally granting writ of mandamus compelling trial court to appoint counsel in DNA proceeding).

In this case, the trial court appointed counsel for Bretz after Bretz filed his petition for writ of mandamus. Because the trial court has thus granted the relief Bretz sought, we dismiss the petition as moot.

April 17, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1] Bretz also complains of the trial court=s purported denial of the notice of appeal. As stated below, a party cannot appeal from an order refusing to appoint counsel in a proceeding for forensic DNA testing. Nevertheless, a trial judge does not have the authority to deny a notice of appeal. See Ex parte Zigmond, 933 S.W.2d 666, 668 (Tex.App.--San Antonio 1996, no pet.). Moreover, upon the filing of a notice of appeal, the trial court clerk has the duty to file the clerk=s record in this Court if the fee has been paid or if the appellant is entitled to appeal without paying the fee. See Tex.R.App.P. 35.3(a). We did not receive a clerk=s record for Bretz=s attempted appeal.