Jerome Johnson v. the State of Texas

Opinion

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