Order entered December 1, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00704-CR
JEROME JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F01-53637-JH
ORDER
Before the Court is appellant’s November 10, 2021 “Motion for Production
of Exculpatory Material Evidences in Possession of the State, Material to the
Appeal.” In the motion, appellant seeks reports, records, documents, the complete
prosecutor file, and other items not located in the appellate record. We DENY the
motion. See Delgado v. State, No. 05-19-00821-CR, 2021 WL 4901565, at *9
(Tex. App.—Dallas Oct. 21, 2021, no pet h.) (“The standard we must apply deals
only with ‘the record evidence adduced at the trial.’ This includes evidence both
properly and improperly admitted, but it cannot include evidence not admitted.”)
(internal citations omitted).
In his second motion, appellant contends he is entitled to appointed counsel
in this appeal. An indigent convicted person intending to file a motion for post-
conviction DNA testing has a limited right to appointed counsel. See TEX. CODE
CRIM. PROC. ANN. art. 64.01(c). While that “entitlement used to be absolute,” “it is
now conditioned on the trial judge’s finding ‘that reasonable grounds exist for the
filing of a motion.’” Ex parte Gutierrez, 337 S.W.3d 883, 889–90 (Tex. Crim.
App. 2011). Here, the trial court did not find that reasonable grounds existed for
filing the motion; thus, under the plain language of the code of criminal procedure,
appellant is not entitled to counsel “during a proceeding under this chapter,” which
includes this appeal. We DENY appellant’s motion for counsel.
Also before the Court is appellant’s letter requesting clarification on when
his brief is due. In the letter, appellant notes that he has not yet received a paper
copy of the clerk’s record. We DIRECT the Clerk to send a paper copy of the
clerk’s record filed in this appeal to appellant at the address on file with the Court.
We ORDER appellant’s brief due by January 14, 2022.
/s/ ERIN A. NOWELL
JUSTICE