Michael Frischenmeyer v. The State of Texas--Appeal from 5th District Court of Cass County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00124-CR
______________________________
MICHAEL J. FRISCHENMEYER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th Judicial District Court
Cass County, Texas
Trial Court No. 94-F-172
Before Morriss, C.J., Ross and Cornelius,* JJ.
Memorandum Opinion by Chief Justice Morriss

__________________________________________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

 
MEMORANDUM OPINION

Michael J. Frischenmeyer, pro se, (1) appeals from the denial of his motion for DNA testing on a check. In the underlying case, based on his plea of no contest, Frischenmeyer was sentenced on February 7, 1995, to a charge of theft by check. The present case arises from his motion to obtain DNA testing of the check.

On December 7, 2002, Frischenmeyer filed a pro se motion, supported by affidavit, for forensic DNA testing of the check for biological evidence. See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2003). Frischenmeyer argued testing would show that none of his DNA was on the check, thus showing he was innocent of the crime. The trial court appointed counsel to represent Frischenmeyer after the motion was filed. See Tex. Code Crim. Proc. Ann. art. 64.01(c). After the State filed its written response to the motion for DNA testing, the trial court considered the arguments of counsel for both parties and denied the motion.

On appeal, Frischenmeyer mentions a number of complaints, including a series of complaints about the sufficiency of the evidence to support the underlying conviction. The only two contentions of error properly raised before this Court are his complaints that the trial court erred by denying his request for DNA testing and that his counsel was constitutionally ineffective in pursuing that remedy.

 

DNA Testing

An applicant, in order to obtain forensic DNA testing, must establish by a preponderance of evidence that a reasonable probability exists he or she would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). The Texas Court of Criminal Appeals has interpreted this to mean that an applicant must show "a reasonable probability exists that exculpatory DNA tests will prove [his] innocence." Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002); see Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.-Houston [1st Dist.] 2002, no pet. h.). In line with this reasoning, Bell v. State, 90 S.W.3d 301, 308 (Tex. Crim. App. 2002), explained that the statute requires that "identity 'was or is' an issue, not that future DNA testing could raise the issue." See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). Article 64.03(a)(1)(A) also requires, as an obvious precursor, that the court find the evidence still exists and is in a condition making DNA testing possible.

Frischenmeyer pled no contest. Therefore, identity was not an issue in the 1995 conviction. The State's response states that the check cannot be found. Even if the check were available for testing, there is also evidence by affidavit that the likelihood of finding uncontaminated DNA is remote, because a check by its nature is handled by a number of persons, and it would be unlikely in the best of circumstances to obtain identifiable DNA from a check. Finally, even if DNA testing were done and determined the absence of Frischenmeyer's DNA on it, that would not prove his innocence. Therefore, the information provided to the trial court shows that findings required by two separate sections of the statute cannot be made.

Frischenmeyer also complains the trial court declined to bench warrant him to Cass County so he could attend a hearing on his motion. The Texas Court of Criminal Appeals has held, however, that "nothing in Article 64.03 requires a hearing of any sort concerning the trial court's determination of whether a defendant is entitled to DNA testing." Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002); Griggs v. State, 99 S.W.3d 718, 721 (Tex. App.-Houston [1st Dist.] 2003, no pet. h.).

Based on the information provided, we cannot conclude the trial court erred by denying the motion for DNA testing.

Assistance of Counsel

Frischenmeyer also contends he received ineffective assistance of counsel during this proceeding at the trial level. The first question is whether he may raise this contention in this type of proceeding. That matter has not been addressed directly by the Texas Court of Criminal Appeals, but the question has been answered by several of our sister courts.

A prisoner has no Sixth Amendment right to counsel when mounting a collateral attack on his or her conviction. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Similarly, the Texas Constitution provides no right to counsel in a post-conviction collateral attack. Ex parte Mines, 26 S.W.3d 910, 913 (Tex. Crim. App. 2000). Therefore, a prisoner cannot claim constitutionally ineffective assistance of counsel in such a proceeding. Coleman v. Thompson, 501 U.S. 722, 752 (1991); Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002). Further, a legislative decision to provide appointed counsel for a prisoner mounting a post-conviction collateral attack does not trigger a constitutional right to effective representation in that proceeding. Finley, 481 U.S. at 559; In re Goff, 250 F.3d 273, 275 (5th Cir. 2001); Graves, 70 S.W.3d at 112-13.

These holdings were made in the context of post-conviction habeas corpus proceedings. Their reasoning is equally applicable to a post-conviction request for forensic DNA testing under Chapter 64, which is merely another form of collateral attack. In re Beasley, No. 03-02-00530-CR, 2003 WL 1922782 (Tex. App.-Austin Apr. 24, 2003, no pet. h.); Morris v. State, No. 11-02-00143-CR, 2003 WL 1883559 (Tex. App.-Eastland Apr. 17, 2003, no pet. h.).

We affirm.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: March 24, 2003

Date Decided: May 16, 2003

 

Do Not Publish

1. Frischenmeyer repeatedly requested during the pendency of this appeal that his appointed counsel be removed from the appeal so he could file his own brief. We granted his motion. Frischenmeyer is pro se in this appeal.