Boyd Rodgers v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-02-00080-CR

BOYD RODGERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 92-235-C

MEMORANDUM OPINION

Boyd Rodgers filed a pro se motion for postconviction DNA testing and appointment of counsel under article 64.01 of the Code of Criminal Procedure. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, 2, 2001 Tex. Gen. Laws 2, 2-3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004)). // The trial court denied Rodgers s motion by written order as follows:

Came on to be considered on March 1, 2002, that certain document designated by the defendant as follows:

PETITION REQUEST FOR DNA TESTING, APPOINTMENT OF COUNSEL

and after review of same, the Court is of the opinion that the same should be, and is in all respects DENIED.

Rodgers contends that the court erred by denying his request for postconviction DNA testing on its merits without first appointing counsel. The State responds that no error is shown because the motion for DNA testing is patently frivolous on its merits.

Under the version of article 64.01(c) applicable to Rodgers s case, [i]f a convicted person informs the court that the person wishes to submit a motion under this chapter and if the court determines that the person is indigent, the court shall appoint counsel for the person. Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003). Rodgers s petition satisfies these requirements. Accordingly, appointment of counsel is mandatory. Winters v. Presiding Judge of Crim. Dist. Ct. No. 3 of Tarrant County, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003). The merits of the request for DNA testing are irrelevant to this inquiry. // Id.

The trial court erred by failing to appoint counsel to represent Rodgers. Thus, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna //

Reversed and remanded

Opinion delivered and filed March 10, 2004

Do not publish

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