IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
SEPTEMBER 1, 2005
______________________________SAMMY CHAVEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;
NO. 2104-B; HON. GORDON H. GREEN, PRESIDING _______________________________
Memorandum Opinion _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Sammy Chavez appeals his conviction for delivering marijuana. His sole issue concerns the trial court's decision to overrule his application for appointed trial counsel. We affirm the judgment of the trial court.
There is no duty on the part of the trial court to appoint counsel until the defendant shows he is indigent. Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988); Atwood v. State, 120 S.W.3d 892, 896 (Tex. App.-Texarkana 2003, no pet.). Furthermore, the decision regarding a defendant's status as an indigent is made on a case-by-case basis as of the time the issue is raised and not as of some prior or future time. Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004); Gray v. Robinson, 744 S.W.2d at 607. Next, should a prima facie showing of indigence be made by the defendant, the burden shifts to the State to show that the accused is not impoverished. Whitehead v. State, 130 S.W.3d at 874. Finally, if after inquiry it appears that a defendant has sufficient resources to hire a lawyer, the judge need not appoint one for him at government expense. Oliver v. State, 872 S.W.2d 713, 716 (Tex. Crim. App. 1994).
Here, appellant informed the trial court at his arraignment that he was in the process of hiring an attorney. The trial court gave him until March 27th to do so. When the 27th arrived, appellant disclosed that his efforts were ongoing. This resulted in the trial court affording him until April 10th to secure one. On April 10th, appellant made application for an appointed attorney, but the trial court denied the application, finding that he did not qualify for one. When the cause finally came on for trial on May 1st, appellant told the trial court that he not only had secured $1000 with which to retain counsel but also contacted a lawyer the day before. However, the attorney declined representation not because the $1000 retainer was insufficient but because of the belatedness of appellant's request. No additional time was given appellant by the court, however. Instead, it proceeded with the trial.
Missing from the record before us are both the pretrial application purportedly filed by appellant and the evidence, if any, he used to support his request. Moreover, appellant does not contend that he accompanied his application with any evidence to support the request. See Whitehead v. State, 130 S.W.3d at 874 (stating that the allegations in a motion for appointed counsel are not evidence). Nor are we cited to any such evidence. Without this information, we cannot say whether appellant fulfilled his burden to establish a prima facie showing of indigence. This is fatal since an appellant must present us with a record sufficient to show reversible error. Kent v. State, 982 S.W.2d 639, 641 (Tex. App.-Amarillo 1998, pet. ref'd, untimely filed).
That evidence of indigence may have been tendered after trial and in support of his application for appointed counsel on appeal is of no benefit. This is so because we do not know if the trial court had that information before it when it decided to deny the application. Again, the decision is made on a case-by-case basis as of the time the issue is raised. So, evidence outside the purview of the trial court at the time of its ruling cannot be used to later attack that ruling. See Whitehead v. State, 130 S.W.3d at 874 (stating that the affidavits could not be considered on appeal since they were not before the trial court when it ruled).
In sum, we do not know what evidence, if any, appellant offered the trial judge when he moved for appointed trial counsel. Yet, we do know that he had access to at least $1000 before trial with which to retain an attorney. These circumstances prevent us from holding that the court's refusal to appoint trial counsel was erroneous.
Accordingly, the judgment of the trial court is affirmed.
Per Curiam
Do not publish.
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NO. 07-10-0235-CR
NO. 07-10-0236-CR
NO. 07-10-0237-CR
NO. 07-10-0238-CR
NO. 07-10-0239-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 24, 2011
______________________________
JOE MARVIN SLUTZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 58,571-E, 58,572-E, 58,573-E, 58,574-E & 58,575-E;
HONORABLE DOUGLAS R. WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In 2008, Appellant, Joe Marvin Slutz, was convicted and sentenced as follows: cause number 58,571-E, sexual assault of a childBtwenty years confinement; (2) cause number 58,572-E, Count IBaggravated sexual assault of a childBconfinement for life; Count IIBaggravated sexual assault of a childBconfinement for life; (3) cause number 58,573-E, aggravated sexual assault of a childBconfinement for life; (4) cause number 58,574-E, aggravated sexual assault of a childBconfinement for life; and (5) cause number 58,575-E, aggravated sexual assault of a childBconfinement for life. His convictions were affirmed by this Court. See Slutz v. State, Nos. 07-08-00434-CR, 07-08-00435-CR, 07-08-0436-CR, 07-08-0437, and 07-08-0438-CR, 2009 Tex. App. LEXIS 8326 (Tex.App.--Amarillo Oct. 29, 2009, pet. dism'd).
On March 12, 2010, Appellant filed, in each cause, a Motion for Post Conviction DNA Testing Pursuant to Chapter 64 of the Texas Code of Criminal Procedure. As required by article 64.02(a)(2)(B) of the Code, the State responded to Appellant's motion by explaining that no evidence could be delivered for testing because none had been collected. In its brief, the State explained that during Appellant's trial, the Sexual Assault Nurse Examiner testified that she did not collect any samples for testing because the last sexual assault had occurred outside a ninety-six hour period. No hearing was held on Appellant's motion, and the trial court entered an order in each cause denying the motion.[1] Appellant now appeals the denial of his request for DNA testing.
Relying on McKenzie v. State, 617 S.W.2d 211 (Tex.Crim.App. 1981), Appellant argues that "[t]he rule is well settled that where the state introduces an exculpatory statement or confession of a defendant it is then bound to disprove it and failure to do so is grounds for acquittal." Id. at 217. McKenzie has no application to this appeal from the trial court's denial of a request for DNA testing. Furthermore, Appellant does not brief nor argue entitlement to appointed counsel or challenge the trial court's rulings. See Tex. R. App. P. 38.1(i). Nevertheless, we will construe his brief as a challenge to the denial of his motions for DNA testing.
We review the trial court's decision to deny DNA testing under the bifurcated standard announced in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Chapter 64 of the Texas Code of Criminal Procedure provides that a convicting court may order forensic DNA testing only if it finds the evidence Astill exists and is in a condition making DNA testing possible.@ Tex. Code Crim. Proc. Ann. art. 64.03(a) (West Supp. 2010). The burden is on the convicted person to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing, and the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Art. 64.03(a)(2). Simply stated, the convicted person must show the existence of a reasonable probability that exculpatory DNA tests would prove his innocence. Kutzner v. State, 75 S.W.3d 427, 439 (Tex.Crim.App. 2002).
Additionally, the Court of Criminal Appeals has held that A[n]othing 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, 89 S.W.3d at 58-59. Therefore, the trial court, in deciding whether the evidence to be tested still exists, may reach its decision based on the sufficiency of the State=s written explanation of its failure to deliver the requested evidence. See Mearis v. State, 120 S.W.3d 20, 24 (Tex.App.BSan Antonio 2003, pet. ref=d).
In the present case, the State explained there was no biological material to test. Based on the sufficiency of the State's reason, the trial court concluded that Appellant was not entitled to DNA testing. Consequently, Appellant did not demonstrate entitlement to appointed counsel or to DNA testing.[2] We hold the trial court did not err in denying Appellant's request for DNA testing in each cause. Appellant=s sole contention is overruled.
Accordingly, the trial court's orders are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
[1]Although the trial court's order is entitled "Order Denying Defendant's Motion for DNA Testing and Appointment of Counsel," nowhere in his motions does Appellant request appointment of counsel. Nevertheless, in the notices of appeal filed in cause numbers 07-10-0236-CR and 07-10-0237-CR, Appellant complains that the trial court did not appoint counsel to represent him in pursuing DNA testing. Entitlement to appointed counsel to pursue DNA testing is not absolute. The convicted person must meet three criteria: (1) inform the trial court that he wants to submit a motion for the appointment of counsel; (2) the trial court must find that "reasonable grounds" exist for the filing of the motion; and (3) the trial court must find that the convicted person is indigent. Gutierrez v. State, 307 S.W.3d 318, 321 (Tex.Crim.App. 2010).
[2]On January 25, 2011, Appellant filed an untimely Reply Brief. He complains that his conviction was based on extraneous offense evidence. This issue was addressed and resolved against Appellant in his direct appeals. See Slutz v. State, Nos. 07-08-00434-CR, 07-08-00435-CR, 07-08-00436-CR, 07-08-00437-CR, and 07-08-00438-CR, 2009 Tex. App. LEXIS 8326 (Tex.App.--Amarillo Oct. 29, 2009, pet. dism'd). His other complaints relate to alleged biological material. As the State explained, no biological material was collected; thus, there is nothing to test. We overrule the arguments raised in Appellant's Reply Brief.