COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00444-CR

NORMAN SPORE BOLTON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant appeals from the trial court’s order denying postconviction DNA 

testing. We affirm.

In his first issue, appellant contends that he was denied due process 

“because the trial court proceeded without first informing appellant his 

March 9, 2012, motion had never been filed and had apparently been lost and 

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See Tex. R. App. P. 47.4.
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because the trial court did not give appellant an opportunity to file a motion to 

substitute for his March 9, 2012, motion.”

The clerk’s record contains a July 12, 2012 letter from appellant to the 

district clerk’s office asking about his second “‘Motion for Appointment of 

Counsel’ With Motion to Petition the Court[] for Court Order to Appointed Expert 

for DNA Testing.” Appellant noted that he had received no response from the 

district clerk’s office as to whether the motions had been filed.

Although appellant claims that his motion for DNA testing was never filed,

a supplemental clerk’s record filed in this appeal shows that appellant’s 

March 9, 2012 motion was filed by the district clerk on March 20, 2012. We 

overrule appellant’s first issue.

In his second issue, appellant contends that he was denied due process 

because the court reporter was not excused by agreement of the parties as 

required by rule 13.1 of the rules of appellate procedure. Tex. R. App. P. 13.1(a).

The court of criminal appeals has held that it is an appellant’s burden to 

object to the lack of a reporter’s record in the trial court. Davis v. State, 345 

S.W.3d 71, 77–78 (Tex. Crim. App. 2011); Valle v. State, 109 S.W.3d 500, 507–

509 (Tex. Crim. App. 2003). Appellant did not do so here. Moreover, chapter 64 

of the code of criminal procedure does not require a trial court to hold an 

evidentiary hearing before ruling on a motion for DNA testing. Ex parte 

Gutierrez, 337 S.W.3d 883, 893 (Tex. Crim. App. 2011). The order denying 

appellant’s motions states only that the motion was presented to the court; 
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nothing in the record indicates that the trial court held an evidentiary hearing on 

appellant’s motions. Accordingly, there were no proceedings for the court 

reporter to record. Id. at 892 (“[A] person’s effort to secure testing under Chapter 

64 does not involve any constitutional considerations.”); cf. Michiana Easy Livin’ 

Country, Inc. v. Holten, 168 S.W.3d 777, 782 (Tex. 2005) (“What is clear is that a 

reporter’s record is required only if evidence is introduced in open court; for 

nonevidentiary hearings, it is superfluous. If all the evidence is filed with the clerk 

and only arguments by counsel are presented in open court, the appeal should 

be decided on the clerk’s record alone.” (footnotes omitted)). We therefore

overrule appellant’s second issue.

Having overruled both of appellant’s issues, we affirm the trial court’s 

order.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 30, 2013