### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00307- CR

Randy L in Ates, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 06- 3020 99, H ONO RAB LE K AREN SAGE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n 2009, appellant Randy L in Ates was convicted of three counts of ag g rava ted s e xu a l assault of a

child and one c ount of indece ncy with a child by

contac t and s entenc ed to forty y ear s’ imprisonment. See Tex. Penal Code §§ 21.11, 22.021. I n J uly 2014, Ates filed a motion for DNA testing, see Tex. Code Crim. P roc. a rt. 64.01, which the tria l court denie d. Ates filed a timely notice of appea l on May 3, 2015. On Dec ember 1, afte r twice extending the time to file his brief, we sent Ates notice that his br ief was overdue

. On J anuar y 29, 2016, afte r receiving no response , we abated the appea l, asking the t rial court to hold a hearing to deter mine whether Ates had abandone d his appea l and, if nece ssary , to appoi n t an at t orney . See
Tex. R. App. P. 38.8(b)( 2). On Fe bruar y 3, the trial court enter ed finding s of fac t stating that Ates’s motion for DNA testing did not specify the items he wanted tested; that there was no phy sical evidenc e introduced at trial; that the motion was denied “bec ause there was nothin g t o t es t ”; andthat a hear ing on whether Ates had abandone d the appea l “would be fruitless, s i n ce there was no

evidenc e to be tested, and the appea l ha s no possible me rit.” Since that time, w e have rec eived no further communications from Ate s, and his brief ha s not been filed. Rule 38.8(b) provides that when an appellant’ s brief is not filed i n a cr iminal case,

we must order the trial court to conduct a hear ing to deter mine whether the appellant has abandone d his appea l, whether he is indige nt, and i f not , whether reta ined counsel has abandoned the appea l, and to e nter appropr iate finding s and rec ommendations. Id. R. 38.8(b)( 2), (3). We must then “ac t
appropr iately to ensure that the appellant’ s rig hts are protec ted,” and if the trial court deter mines that
t h e ap p el l an t is not indige nt but has not made arr ang ements to file a brief, we “may consider t h e ap p eal without briefs, as justice may require .” Id. R. 38.8(b)( 4). Ates is indige nt and, there fo re , rule 38.8(b) (4) doe s not precise ly fit this case.
Howeve r, when an indige nt defe ndant files a motion for DNA testing, he has “a limit ed ri ght to appointed counsel,” which is conditioned on a deter mination that “‘r easona

ble
g rounds exis t for the filing of a motion.’” Ex parte Gutier rez , 337 S.W .3d 883, 889 (Tex. Crim. App. 2011) (quoting Gutierrez v. State , 307 S.W .3d 318, 321 (Tex. Crim. App. 2010)). T h e defe ndant need not prove his entitlement to DNA testing to obtain an appointed attorney , but he
must “demonstra te rea sonable g rounds for the motion [for DNA testing] to be filed.” Atkins v. State , No. 14-12-00482- CR, 2012 W L 6632333, at *3 (Te x . App.—Houston [14th Dis t.] Dec

. 20, 2012, pet. ref ’d) (mem. op., not desig nated for publicati o n ); s ee Tex. Code Crim. Proc. art. 64.01(c) (trial court shall appoint counsel i f i t fi n d s rea sonable g rounds for motion to be filed); Gutierrez , 337 S.W .3d at 889-902 (af firming denial of motion for DNA testing beca use defe ndant did not
prese nt rea sonable g rounds for r equesting testing)

. “B asic require ments for post-c onviction DNA
2testing are that biologica l evidenc e ex ists, that evidenc e is in a condition that it can be te sted, that

the identity of the perpe trator is or was an issue, and that this is the ty pe of case in which exculpatory DNA r esults would make a dif fer ence .” Gutierrez , 337 S.W .3d at 891. As g rounds for r equesting DNA testing , Ates’s motion stated in full:

Article 64.01(b) states that a Movant is entitled to reque st D.N.A. testing of evidenc e th at wa s s ecured in rela tion to the offe nse that is the basis of the challeng ed conviction and was in the possession of the state dur ing the trial of the offe nse but, (1) was not previously subjected to D.N.A. testing

. . . an d (2 ) throug h no fault of Movant and the inter est of justice re quire testing

. Consequently , Movant now reque st[ s] the State to “deliver the evidenc e to the court, along with a descr iption of the condition of evidenc e” as require d by § 64.02 (2)( A) in order that Movant may use any exculpatory evidenc e g ather ed (throug h testing for D.N.A.) to prove his innocenc e.
(Ellipsis in orig inal.) This motion does not approa ch the threshold of prese nting rea sonable g rounds for r equesting DNA testing . First, it did not include an aff idavit containing fac ts in support of the motion. See Tex. Code Crim. Proc. art. 64.01(a- 1). Nor did it state what evidenc e should be tested,

1 2

Ates attache d a signe d document entitled “af fidavit” that simply stated, “My name is 1 RANDY ATES. and I am the aff iant in the enclose d Motion for D.N.A. testing and I do decla re under penalty of perjury pursuant to 28 U.S.C. §1746 that the statements made by me in this Motion for D.N.A. testing are true and corr ect and are not made to hara ss any one or delay the administration of J ustice.” This document does not prese nt any fac ts that could support a reque st for DNA testing. See, e.g. , Ex parte Gutierrez , 337 S.W .3d 883, 888 (Tex. Crim. App. 20 1 1) (def endant 2 soug ht testing of blood samples, shirt, nail scra pings, and hair); In re W

eisinger , No. 12-13-00205- CR, 2014 W L 5 3 9 0 6 6 0 , at *3 (Tex. App.—Ty ler Oct. 22, 2014, orig

. proce eding ) (mem. op., not desig nated for publication) (def endant soug ht testing of hammer handle) ; Chavero v. State , No. 13- 13-00227-CR, 2014 WL 69954, at *2 (Te x . App.—Corpus Christi J an. 9, 2014, pet. ref’d) (mem. op., not desig nated for publication) (def endant soug ht DNA testing on paper towel found in victim’s car); P ey r a vi v. State , 440 S.W .3d 248, 249 (Tex. App.—Houston [14t h Dist.] 2013, no pet.) (def endant s o u gh t t es ting of knife handle) ; Johnson v. State , No. 14-10-01247- CR, 2011 WL 5009499, at *2 (Tex. App.—Houston [14t h Dist] Oct. 20, 2011, no pet.) (per curia m) (mem. op., not 3state t h at s u ch evidence ever exis ted, state that the evidenc e still exis ts and could be tested,

asser t that identity

was a n issue in the ca se, or c laim that Ates would not have be en convic ted had exculpatory DNA results been obtained. See id

. art. 64.03. Ates’s motion did not prese nt rea sonable
g rounds for filing the motion, and he thus did not establish his entitlement to an appointed attorney

.

Be cause Ates is not entitled to appointed co u n s el u nder chapte r 64 of the code of crimin al p ro cedure, we believe we can apply rule 38.8(b)(4) and consider the case without briefs. See Tex. R. App. P. 38.8(b)( 4). And, for the same rea sons we have deter mined Ates was not entitled
to a p p o in te d c o u n s e l, w e a ls o h o ld th a

t th e tr ia l c o u

r t d id n o t e r r in d e ny in g h is mo ti o n f

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p p . — A ma r il lo
J uly 11, 2013, pet. ref

’d) (per curia m) (mem. op., not desig nated for publication) (bec ause defe ndant did not meet basic require ments for DNA testing, court of appea ls aff irmed trial court’s denial of motion for DNA testing)

. We aff irm the trial court’s order deny ing Ates’s motion for DNA testing.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David Pury ear , J ustice
Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: June 8, 2016 Do Not Publish

desig nated f

or publication) ( defe ndant soug ht testing of ja cket, shoe box , and bag g ies). 4