in Re: Robert A. Allen

Becker v. State

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE: ROBERT A. ALLEN, Relator.	§ § § § § §	No. 08-07-00110-CR AN ORIGINAL PROCEEDING IN MANDAMUS

OPINION ON PETITION FOR WRIT OF MANDAMUS

Relator, Robert A. Allen, filed a petition for writ of mandamus seeking to compel the 243rd District Court to rule on his amended motion for DNA testing, motion for new trial, and a supplemental motion for new trial. For the following reasons, we conditionally grant relief.

FACTUAL SUMMARY

In 1979, Allen was convicted and sentenced to life imprisonment for aggravated kidnaping.  We affirmed his conviction on May 5, 1982 in an unpublished opinion. See Allen v. State, No. 08-81-00033-CR (Tex.App.--El Paso 1982, pet. ref'd)(not designated for publication). On December 6, 2005, Allen filed a first amended motion for post-conviction DNA testing of previously untested evidence in possession of the State in Cause Number 33813, aggravated kidnaping. The trial court held a hearing on the motion on February 23, 2006.

Allen complains that the trial court has failed to rule on his motion for new trial, supplemental motion for new trial, and amended motion for DNA testing. To be entitled to mandamus relief, a relator must establish that the act sought to be compelled is ministerial and that there is no adequate remedy at law. Dickens v. Court of Appeals for Second Supreme Judicial District of Texas, 727 S.W.2d 542, 548 (Tex.Crim.App. 1987). An act is ministerial if it does not involve the exercise of discretion. State ex rel. Hill v. Court of Appeals for the Fifth District, 34 S.W.3d 924, 927 (Tex.Crim.App. 2001).

CAUSE NUMBERS

Allen's petition relates to two cause numbers, Cause Number 33813-327 and Cause Number 33812-327. He also filed a motion to consolidate. The State contends Allen is not entitled to mandamus relief in Cause Number 33812-327 because he has failed to show that a motion was pending and that the trial court has refused to rule on his motion. We agree. First, we have no record in Cause Number 33812. According to the State, Allen pled guilty to a separate charge of aggravated rape and was sentenced to twenty years' confinement. His sentence was to run concurrently with his life-sentence in Cause Number 33813. The State also mentions there was no record of appeal.

Secondly, the first amended motion for post-conviction DNA testing was filed in Cause Number 860D08102 with a handwritten number of 33813. The motion alleged that Allen was convicted and sentenced to life for an aggravated kidnaping in 1979 and he was moving for post-conviction DNA testing that would more likely than not exclude him as the perpetrator in that crime. The motion makes no mention of the aggravated rape charge nor does it reference Cause Number 33812.

We do note, however, that at the evidentiary hearing, the trial court called the case of "the State of Texas v. Robert Allen, 2 -- that's 33812 and 33813." It is unclear from the record why the hearing was called under both cause numbers. Regardless, Allen has not provided us with a copy of a motion in Cause Number 33812. See Tex.R.App.P. 52.7 (relator must file a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding). Therefore, he has failed to show he is entitled to mandamus relief. We will only address his arguments as they relate to Cause Number 33813.

MOTIONS FOR NEW TRIAL

In his petition, Allen contends the trial court failed to rule on his motion for new trial and supplemental motion for new trial. The Rules of Appellate Procedure define a new trial as the "rehearing of a criminal action after the trial court has, on the defendant's motion, set aside a finding or verdict of guilt." Tex.R.App.P.21.1. Although Allen contends the trial court erred in failing to rule on his motions for new trial, an order disposing of a Chapter 64 motion for DNA testing does not involve a finding of guilt. A motion for new trial is thus a nullity. See Welsh v. State, 108 S.W.3d 921, 922-23 (Tex.App.--Dallas 2003, no pet.). Moreover, motions for new trial are overruled by operation of law if the trial court does not rule on the motion within seventy-five days after imposing or suspending sentence in open court. See Tex.R.App.P. 21.8. Therefore, Allen has failed to show he is entitled to mandamus relief.

AMENDED MOTION FOR DNA TESTING

Allen also seeks mandamus relief to compel the trial court to rule on his amended motion for DNA testing. He contends he has been denied due course of law and access to the judicial forum on the appellate level.

Chapter 64 allows a convicted person to submit a motion for forensic DNA testing of evidence containing biological material. See Tex.Code Crim.Proc.Ann. art. 64.01(a)(Vernon 2006). A convicting court may order forensic DNA testing only if:

(1) the court finds that:

(A) the evidence:

(I) still exists and is in a condition making DNA testing possible; and

(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence that:

(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and

(B) the request of the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

See Tex.Code Crim.Proc.Ann. art. 64.03(a).

To establish the trial court abused its discretion by failing to rule on a motion, the relator must show the court (1) had a legal duty to perform a nondiscretionary act, (2) was asked to perform the act, and (3) failed or refused to do so. In re Cash, 99 S.W.3d 286, 288 (Tex.App.--Texarkana 2003, orig. proceeding). A trial court must consider and rule on a Chapter 64 motion for DNA testing within reasonable time. In Re Cash, 99 S.W.3d at 288; In re Rodriguez, No. 08-03-00063-CR, 2003 WL 21419588 at *1-2 (Tex.App.--El Paso 2003, orig. proceeding)(not designated for publication). Thus, the trial court had the legal duty to perform the nondiscretionary act of ruling on Allen's motion for DNA testing.

Secondly, Allen provided us with copies of letters he sent to the trial court. In a letter dated February 15, 2007, Allen reminded the court he wanted to appeal the destruction of DNA evidence. He sought a certification from the court for his right to appeal, and asked to be notified of the court's final ruling on the DNA testing so he could file his notice of appeal. He clearly asked the trial court to perform. We next determine whether the court failed to perform its legal duty.

The State contends the trial court ruled on the motion at the hearing. The trial court stated the following:

THE COURT: Okay. Okay. Well, if there's not any evidence to test, then obviously there can't be an order to test it, so, Mr. Allen, I'm sorry, that they couldn't find anything, but at least you can be satisfied in your mind that you tried, or any satisfaction that might bring you. I don't know if it would or wouldn't, but apparently there isn't anything left to test. Okay. Then we're adjourned.

An appellate court may review a trial court's denial of a post-conviction motion for DNA testing. See Wilson v. State, 185 S.W.3d 481, 483-84 (Tex.Crim.App. 2006)(Court of Criminal Appeals reviewed denial of post-conviction motion for DNA testing); Rodriguez v. State, 153 S.W.3d 245, 248 (Tex.App.--El Paso 2004, no pet.)(restrictions of Texas Rule of Appellate Procedure 25.2(a)(2) do not apply to an appeal from a denial of post-conviction testing); Cravin v. State, 95 S.W.3d 506, 508 (Tex.App.--Houston [1st Dist.] 2002, pet. ref'd)(article 64.05 allows a defendant to appeal the convicting court's denial of his post-conviction motion for DNA testing). Specifically, Chapter 64 provides "[a]n appeal under this chapter is to a court of appeals in the same manner as an appeal of any other criminal matter, except that if the convicted person was convicted in a capital case and was sentenced to death, the appeal is a direct appeal to the court of criminal appeals." See Tex.Code Crim.Proc.Ann. art. 64.05. Therefore, a trial court's finding on a motion for DNA testing is an appealable order. In re Johnston, 79 S.W.3d 195, 197 (Tex.App.--Texarkana 2002, orig. proceeding).

Under the Texas Rules of Appellate Procedure, a defendant must file a "notice of appeal within thirty days after the day the sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order." [Emphasis added]. See Tex.R.App.P. 26.2(a)(1). A trial court enters an appealable order when the order is signed by the trial judge. See Ex Parte Delgado, 214 S.W.3d 56, 58 (Tex.App.--El Paso 2006, pet. ref'd)(under Texas Rule of Appellate Procedure 26.2(a)(1), defendant untimely filed his notice of appeal, eighty-nine days, after the trial court signed the appealable order); Cravin, 95 S.W.3d at 508 (written order is required for an appeal from a convicting court's ruling on a post-conviction motion for DNA testing); In re Johnston, 79 S.W.3d at 198 (trial court is required to sign written order in resolving a motion seeking DNA testing of evidence). ⁽¹⁾ Therefore, although Chapter 64 does not specifically require a written order if a convicting court does not find that testing should be conducted, it is necessarily implied that the trial court must make a written order since the defendant has a right to appeal from a finding under the article and an appeal must be from an order or judgment. Cravin, 95 S.W.3d at 508; In re Johnston, 79 S.W.3d at 198.

The trial court was required to enter a written order denying Allen's motion for DNA testing. Cravin, 95 S.W.3d at 508; In re Johnston, 79 S.W.3d at 198. His failure to do so has prevented the appellate timetable from beginning. See Tex.R.App.P. 26.2(a)(1); In re Johnston, 79 S.W.3d at 198 (a movant's right to appeal is negated when a written order is not made). Allen has no adequate remedy at law. We conditionally grant the writ. The writ will issue only if the trial court fails to enter a written order in accordance with this opinion.

SANCTIONS

The State sought sanctions against Allen pursuant to Rules 52.7(a)(2) and 52.11 of the Texas Rules of Appellate Procedure. ⁽²⁾ It argues Allen should be sanctioned for failing to provide a transcript of the February 23, 2006 hearing and for filing a groundless petition. Because we have determined the trial court had a duty to issue a written order, we deny the request.

August 23, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. We recognize In re Johnston relied on Rosenbaum v. State. The State may appeal a trial court's order, as articulated in Article 44.01, not later than the fifteenth day after the date on which the order is entered by the court. See Tex.Code Crim.Proc.Ann. art. 44.01(a) & (d)(Vernon 2006); State v. Rosenbaum, 818 S.W.2d 398, 402-03 (Tex.Crim.App. 1981). The Texas Court of Criminal Appeals held the term entered by the court encompasses the signing of an order by the trial judge. Id at 403.

In Rosenbaum, the court analyzed the conflict between Article 44.01 and former Texas Rule of Appellate Procedure 41(b)(1). Rosenbaum, 818 S.W.2d at 402. Former Rule 41(b)(1) stated, "appeal is perfected when notice of appeal is filed within thirty (fifteen by the state) days after the day sentence is imposed or suspended in open court or the day an appealable order is signed by the trial judge. (emphasis added)." Rosenbaum, 818 S.W.2d at 400. The current version of former Rule 41(b)(1) is Rule 26.2(b): "The notice of appeal must be filed within 15 days after the day the trial court enters the order, ruling, or sentence to be appealed." See Tex.R.App.P. 26.2(b); State v. Shaw, 4 S.W.3d 875, 877 (Tex.App.--Dallas 1999, no pet.). No substantive change was intended. See Tex.R.App.P. 26, notes and comments; Shaw, 4 S.W.3d at 877. Therefore, Rule 26.2(b) did not alter the interpretation in Rosenbaum. Shaw, 4 S.W.3d at 877.

Under Article 44.01, the State may appeal such orders as the dismissal of an indictment, the granting of a motion to suppress, and even an order issued under Chapter 64. See Tex.Code Crim.Proc.Ann. art. 44.01(a)(1),(5) & (6). The appellate timetable for the State begins running from the date the trial judge signs the order. See State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Crim.App. 1992); Rosenbaum, 818 S.W.2d at 402; In re Johnson, 79 S.W.2d at 198. While the analysis in Rosenbaum relates to the timetable for the State's right to appeal, we apply the same analysis similar regarding a defendant's timetable for appealing a Chapter 64 order.

2. Rule 52.7(a)(2) requires that a relator in an original appellate proceeding must file with the petition a properly authenticated transcript of any relevant testimony from any underlying proceeding. See Tex.R.App.P. 52.7(a)(2). Rule 52.11 states in relevant part that "[o]n motion of any party or on its own initiative, the court may--after notice and a reasonable opportunity to respond--impose just sanctions on a party or attorney who is not acting in good faith as indicated" by the filing a petition that is clearly groundless. See Tex.R.App.P. 52.11.