Donald Aekins v. State

• Court: Court of Appeals of Texas
• Decided: October 15, 2015
• Docket: 07-15-00139-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00139-CR

DONALD AEKINS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 403rd District Court Travis County, Texas Trial Court No. D-1-DC-12-904056, Honorable Brenda Kennedy, Presiding

October 15, 2015

ORDER Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Donald Aekins, a Texas prison inmate appearing pro se, has appealed

the trial court’s order denying his motion for post-conviction DNA testing pursuant to

Chapter 64 of the Code of Criminal Procedure. On our own initiative, we now take up

Aekins’ request for appointment of appellate counsel.1 In ruling on Aekins’ Chapter 64

1 In a petition for writ of mandamus filed in this court, Aekins complained the trial court would not rule on his request for appointment of appellate counsel. See In re Aekins, 07-15-00293-CR (Tex. App.—Amarillo Oct. 15, 2015, orig. proceeding) (per motion, the trial court denied appointment of counsel after finding the requirements of

article 64.01(c)2 were not satisfied. Aekins, nevertheless, believes himself entitled to

appointed counsel on appeal.

An indigent convicted person has a “limited right to appointed counsel” for

assistance in filing a motion for post-conviction DNA testing. Ex parte Gutierrez, 337

S.W.3d 883, 889 (Tex. Crim. App. 2011). Entitlement to appointed counsel is subject to

the conditions set out in article 64.01(c). Id. As noted, the trial court has already

addressed the appointment of counsel question under article 64.01(c). This court

previously has noted that article 64.01(c), which is the only provision of Chapter 64 that

addresses entitlement to counsel, does not distinguish between the trial and appellate

stages of the proceeding. Watson v. State, No. 07-06-0414-CR, 2006 Tex. App. LEXIS

10002 (Tex. App.—Amarillo November 16, 2006) (per curiam order) (not designated for

publication); see TEX. CODE CRIM. PROC. ANN. art. 64.01(c). We see no reason to

believe the trial court would view the issue of Aekins’ entitlement to counsel any

__________________________ curiam) (mem op., not designated for publication). We have this date issued our opinion and judgment in that original proceeding.

With regard to Aekins’ expectation that the trial court would address his request for appointment of counsel on appeal, we note that the appellate record already had been filed in this court by the time Aekins filed his motion. See TEX. R. APP. P. 25.2(g). 2 Providing in pertinent part:

A convicted person is entitled to counsel during a proceeding under this chapter. The convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent.

TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (West Supp. 2014).

2 differently now than previously.3 And on appeal Aekins has not as yet shown that the

trial court erred in its denial of counsel on his initial request,4 nor has he otherwise given

us a reason to conclude he is entitled to counsel now. We therefore decline to remand

the case for the trial court’s consideration of appointment of appellate counsel, and

similarly decline to order appointment of appellate counsel.

In support of his request for appellate counsel, Aekins also makes reference to

paragraphs (d)(1) and (d)(4) of article 1.051 of the Code of Criminal Procedure. TEX.

CODE CRIM. PROC. ANN. art. 1.051(d)(1), (4) (West Supp. 2014). In this Chapter 64

proceeding, article 1.051 has no application. Cloud v. State, Nos. 05-07-01414-CR &

05-07-01415-CR, 2008 Tex. App. LEXIS 5893, at *2-3 (Tex. App.—Dallas Aug. 6, 2008,

pet. refused) (finding art. 1.051 inapplicable to appellant in Chapter 64 proceeding

because when he filed his motion for post-conviction DNA testing, he was not a criminal

defendant and art. 1.051 pertains to defendants in adversarial judicial proceedings,

citing art. 1.051(a)).

It is so ordered.

Per Curiam

Do not publish.

3 Cf. Meza v. State, 206 S.W.3d 684, 688 (Tex. Crim. App. 2006) (regarding remand for change of counsel). 4 See Gutierrez v. State, 307 S.W.3d 318, 322-23 (Tex. Crim. App. 2010) (a convicted person may challenge on appeal a trial judge’s refusal to appoint counsel; if reviewing court finds refusal was error, case will be remanded so convicted person may file subsequent motion for DNA testing with assistance of counsel).