There was no a ppeal of this conviction. 1 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 563 -CR

In r e Da vid Wa yne F r ankl in

F ROM THE DISTRICT CO URT OF RUNNELS COUNTY , 119TH JUDICIAL DISTRICT

NO. 5264 , HO NORAB LE CURT F. STEIB , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N David Way

ne F ranklin is serving the pr ison sentence he re ceive d afte r being convicted of mu rd er i n g h i s wi fe. Fr anklin filed a pr o se re quest for a ppointed counsel for

the 1 purpose of

seekingpost-conviction DNA te sting. Te x . C ode Crim. Proc. Ann. a rt. 64.01(c) (West 2006). The trial court found no rea sonable g rounds for a testing motion to be filed a nd denied the re quest for a

ppointed counsel. This appe al followed. Prior to September 1, 2003, a ppeals in cha

pter 64 proc eeding s were expressly limit ed to findings unde r ar

ticles 64.03 and 64.04. Ac t of Apr. 3, 2001, 77th L eg ., R.S., ch. 2, § 2, a rt. 64.05, 2001 Tex. Gen. L aws 2, 4 (ame nded 2003) (cur rent version at Tex
. Code Crim. Proc. Ann. art. 64.05 (We st 2 00 6) ); see Nev eu v. Culve r , 105 S.W .3d 641, 643 (Tex. Crim. App. 2003) (holding there was
no ri g ht t o a

pp e a l tr ia l c ourt ’s fa ilure to a pp oin t c ouns e l) ; Fr

yv . S tat e , 1 1 2 S. W. 3 d

611, 613The a ppointment of counsel wa s mandatory p ri o r t o t h e 2 0 0 3 amendments. Ac t of 2 Apr. 3, 2001, 77th L eg ., R.S., ch. 2, § 2, art. 64.05, 2001 Tex. Gen. Law s 2 , 4 (si nce a mended) (c ur re nt v e rs ion

a t T e x. Cod e Cr im. Pr oc . A nn . a rt . 6 4. 01 (c ) ( Wes t Sup p. 20 07 ))

. B e c a us e of thi s, and bec ause there was no rig ht to appea l the denial of counsel, mandamus wa s deeme d the prope r vehicle by

which to obtain re lief if a reque st for appointed counsel was denied. W inters v. Presiding Judge , 1 18 S.W. 3d

77 3, 77 5- 76 (T e x. Cr im. Ap p. 20 03 ); Ne v e u v . Cu lv er , 1 0 5 S
. W
. 3 d 641, 643 (Tex. Crim. App. 2003). The procedur al consequence s of the 2003 amendments to article 64.01( c) and ar ticle 64.05 have not been a ddresse d b y t h e co urt of cr iminal appeals. Bu t se e W int e rs , 11 8 S. W.3 d at 77 6 n .2 ; se e als o I n r e Lud wig , 162 S.W .3d 4 5 4 (Tex. App.—Waco 2005) (orig

. p r o c e e d in g ) ( h o ld in g th a t a p p o in tm e n t o f c o u n s e l u n d e r a me n d e d a rti c le 6 4
. 0 1 ( c ) is not minist eria l act subjec t to mandamus). The clerk’s recor d contains a trial court certification, signe d by the Honorable B en Woodward, 3 stating that Fr anklin has no rig ht of appe al. See Tex. R. App. P. 25.2(a)( 2). The c ertification cites authority predating the 2003 amendment of article 64.05. At this point in the appellate proce ss, no purpose would be serve d by order ing a

corr ecte d cer

tification. 2 (Tex. App.—For

t Worth 2003, pet. ref’ d) (same). As a me nd e d e ff e c tiv e Se pte mbe r 1 , 2 00 3, a rt ic le 2 64.05 ref ers more g ener ally

to “[a]ppeals under this chapte r.” Te x . Code Crim. Proc. Ann. ar t. 64.05 (West 2006). Under article 64.05 as i t now reads, an appea l lies from an order denying a reque st for appointed counse l. J

am es v . S tat e , 1 96 S.W. 3d 84 7, 84 9 (T e x. Ap p. —T e xar ka na 20 06 , n o p e t.) ; see Le wis v . S

tat e , 1 91 S.W. 3d 22 5, 22 7- 28 (T e x. Ap p. —Sa n An ton io 20 05 , pe t. r e f’ d) ; In re Bowman , No. 03-07-00418- CR, 2007 Tex . App. L EXI S 9500, at *2 (Tex. App.—Austin Dec
. 5, 2007, no pet.) (mem. op., not desig nated f or publication). But see Con lin v . S tat e , 221 S.W .3d 907, 908 3 (Tex. App.—B eaumont 2007, no pet.) (holding that order denying reque st f or appointed c ounsel was not appea lable under

amende d section 64.05). The c lerk’s r ecor d contains a le tter fr om Fra nklin to the Runnels C ounty District Clerk d at ed J u l y 1, 2007, ref err ing to the “ [e] nclosed . . . Movant’ s Motion for Appointment of Couns e l, O rd e r a

nd Af fi davit of I nd ig e nc y ” in t

his c a us e . A t th e bo tto m of

thi s l e tte r, the re is a
no ta tio n, a

pp a re ntl y by a n e mpl oy e e of

the c le rk ’s of

fi c e , “ Pos tma

rk e d 7 -1 7- 07 .” Th e re c or d a lso3

c on ta ins wh a t a

pp e a rs to be the re fe re nc e d re qu e st fo r a pp oin te d c ouns e l a nd

su pp or tin g do c ume nts , including a copy of t he poli ce incident repor t and a copy

of the a utopsy repor t. On the fa ce of

the reque st for counse l, the same pe rson noted, “D ated 7- 17-07” a nd “F iled 8-9-07.” The a utopsy repor t contains this statement of the cir cumstance s of death: This 28 y ear

old woman was f

ound dead fac e down on the floor of her bedroom by he r f a the r. He r f

a the r h a d b e e n tr

y ingto c on ta c t he r b y

ph on e a nd

wa s uns uc c e ssf

ul. He called the police. He then went to look for her and found her . Her husband had taken their child and is thought to have heade d north to the Oklahoma bor der. The child was droppe d off with an a cquaintanc e. The bathtub was full of water a nd her pants wer e lay

ing the re. She w as found de ad and w ear ing a shirt. T here is a

history of domestic violence . The husband was appre hended and admitted to strang ulating [si c] her with a shoe lace . The shoela ce w as not found. The poli ce i n ci d ent report rec ites that hair wa s found in the dec ease d’s hands a nd bag g ed as
e vid e nc e . In h is s ta te me nt o f r e a so ns fo r t est ing a tta c he d to the re qu e st f or a pp oin te d c ouns e l, Fr anklin states that there was no DN A testing of the ha ir. He wishes to have the hairs tested, sa y ing that he “be lieve[s] with a 51% c erta inty that if tested I

will be proven innoc ent.” These doc uments wer e presented to the Honorable C urt Steib for a ruling . By a letter to Fra nklin dated Aug u s t 7 , 2 0 0 7 , J udg e Steib denied the r equest for counsel a fter f

inding that
rea sonable g rounds for a

testing motion had not bee n shown. T h e l et ter states, “ Acc ording to the
corone r’s re port death of Trisha Fr anklin was caused by strang ulation. Be fore DNA testing ca n be order ed the a

pplicant must establish by a prepondera nce of the evidenc e that the a pplicant would not have been convicted if exculpatory results had been obt ained through DNA testing .” The judge ’s le tte r, lik e the oth e r d oc ume nts de sc ri be d a bo ve , wa s fi le d on Au g us t 9, 20 07
. Ap pe lla nt’ s p ro se notice of a

ppeal wa s filed on Aug ust 29, 2007.A copy of this stateme nt is also appende d to the State’s brief. Corr espondenc e and br iefs ar e 4 not part of the a

ppellate r ecor d. See Te x. R. Ap p. P
. 34 .1
. Howev e r, bo th F ra nk lin a nd the Sta te re fe r t o the c hie f’ s state me nt in the ir br ie fs a nd , the re be ing no a pp a re nt dis pu te a s to its a

uth e nti c ity or ac cura cy , we a cce pt the statement at fa ce va lue. 4 Whil e the a

ppeal wa s pending , the Court r ece ived by mail a copy of a sec ond letter from J udg e S teib to Fr anklin to which was appende d a notar ized statement by the B allinge r Chief of Police s tati n g th a t th e h a ir f o u n d in th e d e c e a s e d ’ s h a n d “ a p p e a r e d to b e c o n s is te n t w it h the victim’s hair on her

head, a nd visually

it was the same. O ff

i ce rs believed that during the strang ulation, the victim may have be en attempting to pull on the l iga ture . . . and may

have g rabbe d he r o wn ha ir in t he pr oc e ss. ” The state me nt g oe s o n to sa y tha t th e ha ir wa s n ot t e ste d b e c a

us e Fr anklin confe ssed, and that the ha ir rema ins in the custody of the police

. 4 A convicted person is entitled to appointed c ounsel during a DNAtesting pr ocee ding if: (1) the pe rson informs the trial c ourt that he wishes to submit a motion for testing , (2) the pe rson is indigent, and (3) the cour t finds rea sonable g rounds for a testing motion to be filed. Te x . Code Cr im. Pr oc . A nn . a

rt . 6 4. 01 (c ). Th e re is n o d isp ute that th e fi rs t tw o r e qu ir e me nts a re sa tis fi e d in thi s
case . The only

issue is whether the re a

re r easona

ble g rounds for a

testing motion to be filed. The statute doe s not define “ rea sonable g rounds.” I t follows, however , that an indige nt inmate need not pr ove his e ntitlement to testing as a prec ondition for obtaining a

ppointed counsel to assist him in fili ng a testing motion. I nstead, we believe that rea sonable g rounds for a testing motion are prese nt w hen the fac ts state d in the reque st f or counsel or otherw ise known to the t r i a l c o u rtr e a s o n a

b l y s u g g e s tt h a ta

p l a u s i b l e a r g u m e n t f

o r t e s t i n g c a n b e m a d e . C o n v e r s e l y,
rea sonable g rounds for a

testing motion are not present if the rec ord bef ore the trial court shows thatAt the time F ranklin’s reque st f or counsel was made a

nd denied, a

rticle 64.03(b) provided that 5 the convicting court wa s prohibited from finding that identity was not a n issue in the case solely

on the b a s is o f th e a

p p li c a n t’ s g u il ty p le a . A c t o f A p r . 3 , 2 0 0 1 , 7 7 th L e g . , R. S. , c h

. 2 , § 2, 2001 Tex. Gen. L aws 2, 3. The statute wa s amende d eff ective Septe mber 1, 2007. Ac t of May 24, 2007, 80th L eg ., R.S., ch. 1006, §§ 4, 5(b ), 2007 Tex . Gen. L aws 3523, 3524-25. A ny testing motion Fr anklin might file w ill be gove rned by the amende d statute. 5 DNA testing is imposs i b l e o r that no viable ar g ument for testing can be made. See J ames , 196 S.W .3d at 850 (holding that rea sonabl e gro u nds for testing not present whe n no bio log ic a l e vid e nc e e xiste d) ; Le wis , 191 S.W .3d at 228 (holding that rea sonable g rounds for testing
no t pr e se nt w he n b iol og ic a l e vid e nc e ha d b e e n d e str oy e d) ; Bowman , 2007 Tex. App. L EXI S 9500, at *3-4 (sa

me). I n its August 7, 2007 letter denying F ranklin’s re quest for c ounsel, the trial cour t conclude d that Fr anklin had not established by a pre pondera

nce of the evidence that he would not have be en convic ted if exculpatory results had bee n obtained throug h DNA testing . That, howe ver, is the burden F ranklin must meet to prove his entitlement for testing. See Tex. Code Crim. P roc. Ann. ar t. 64.03(a)( 2)(A) (West Supp. 2007). No motion for testing ha s y et been filed. Franklin was
no t re qu ir e d to pr ov e tha

t a te sti ngmot ion

mus t be g ra

nte d in or de r t o e sta

bli shhis e nti tle me nt t o appointed counse l to assist hi m in filing a te sting motion.

Th e Sta te a rgue s th a t id e nti ty wa s n ot a

nd canno t be a n is su e be c a us e F ra nk lin confe ssed to the murder

. Se e id . art. 64.03(a )(1) (B ). Howe ver, a convicting court is prohibited fr om finding that identity

was not an issue in the c ase solely o n the basis of the a pplicant’s g uilty

plea, confe ssion, or other admission of g uilt. Id . art. 64.03(b)

. 56 I t is undisput ed that biolog ical evide nce in the f orm of hair

found in the dec ease d’s hand is in the possession of t he poli ce and available for DNA testing. The potential sig nificanc e of this evidence is plain. I n his documents supporti ng his reque st for a ppointed counsel, F ranklin stated that this hair “[c]ould prove they have wrong man, another suspect wa s left out of the investig ation. Ibe lie ve wi th a

51 % c e rt a int

y that if te sted Iwi ll b e pr ov e n inno c e nt. ” I n h is p ro se br ie f t o th is Court, Fra

nklin urg es that “it is rea sonable t h at t he victim would rea ch out and g rab the hair of he r attac ker.”

I t re ma ins to be de te rm ine d w he the r F ra nk lin c a n s ho w h ims e lf

e nti tle d to fo re ns ic DNA testing of the ha ir, and nothing in this opinion should be construed a s expressing a n opinion
on that qu e sti on . Co ns ide ri ngthe purp os e of c ha pte r 6 4, ho we ve r, we be lie ve tha t F ra nk lin ’s re qu e st fo r a pp oin te d c ouns e l and

the su pp or tin g do c ume nts wa

rr a nt t he c on c lus ion that the re a re re a so na ble g rounds for a

testing motion to be filed. We conclude that the trial court a bused its discretion by
re fu s i n g t o ap p o i n tco u n s el t o as s i s tFr an k l i n i n t h i s ch ap t er 6 4 p ro ce ed i n g. T h e t ri al co u rt ’s o rd er i s re v er s ed an d t h e cau s e is re m an d ed fo r f u rt h er p ro ce ed i n gs consistent with this opi nion.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Pury ear and He nson Reverse d and Remande d Filed: June 19, 2008 Do No t Pu

bli sh