Marty Maynard Dunlap v. State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed March 27, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00338-CR

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  MARTY MAYNARD DUNLAP, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 21,409-A

M E M O R A N D U M O P I N I O N

Marty Maynard Dunlap filed in the trial court a pro se motion stating that he wished to file a motion requesting DNA testing pursuant to Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon 2006 & Supp. 2007) and requesting that counsel be appointed. A motion for DNA testing was not filed. The trial court denied the motion for appointment of counsel, and appellant filed a pro se notice of appeal. We affirm.

Background

The jury convicted appellant of possession of methamphetamine, and the trial court assessed his punishment at confinement for twenty-five years. This court affirmed the conviction, and the Court of Criminal Appeals denied the petition for discretionary review. Dunlap v. State, No. 11-05-00207-CR, 2006 WL 3747180 (Tex. App.CEastland Dec. 21, 2006, pet. ref=d) (not designated for publication). Identity was not an issue in that appeal; sufficiency of the evidence and the validity of a jury argument were.

In his motion in which he stated he wished to file a motion, appellant asked the trial court to take judicial notice of both the trial and appellate records and proceedings. Appellant also asserted that testing of Athe needles of each syringe, and the snorting straw, that were found in the motel room registered to [appellant=s] friend@ would Aestablish a reasonable probability >sufficient to undermine=@ his conviction.

Issues on Appeal

Appellant contends that the trial court erred in not entering findings of fact and conclusions of law, that the trial court appeared to have held him to a higher standard on his motion, and that the trial court erred because Article 64.05 provides that the appointment of counsel is mandatory. We disagree.

Statutory Provisions for DNA Testing

Articles 64.01-.05 provide the procedures for securing DNA testing in a postconviction setting. We disagree with appellant=s reading of these provisions. Article 64.01(c) provides that appointment of counsel is required but only after appellant has established the following:

(1) that, as the convicted person, he has informed the trial court that he desires to submit a motion for DNA testing;

(2) that the trial court has found reasonable grounds for such a motion; and

(3) that the trial court has determined that he is indigent.

Pursuant to the applicable portions of Article 64.05, A[a]n appeal under this chapter is to a court of appeals.@ There are no provisions requiring the trial court to enter findings of fact or conclusions of law.

Application of the Law to the Record Before this Court

Nothing in the record before us supports appellant=s contentions that the trial court held him to standards higher than those required under the statute. Nothing in the record supports appellant=s contentions that the trial court abused its discretion. However, the record does reflect that appellant failed to meet the prerequisites for appointment of counsel under Article 64.01(c).

All of appellant=s contentions have been considered. Each is overruled.

Holding

The order of the trial court is affirmed.

PER CURIAM

March 27, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.