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Click here for the full text of this decision FACTS:Doyle Sherman Ard appeals the denial of his motion for forensic DNA testing. Ard asserts that he was denied effective assistance of counsel in his appointed counsel’s representation on his Chapter 64 motion. HOLDING:Affirmed. The Court of Criminal Appeals has left open the issue of whether a convicted person has the right to effective assistance of counsel in a Chapter 64 proceeding. Four courts of appeals, however, have held that there is no constitutional right to effective assistance of counsel in a Chapter 64 proceeding. These courts reasoned that the Court of Criminal Appeals has analogously held that there is no constitutional right to effective assistance of counsel in a post-conviction habeas corpus proceeding, even though a statute provided for appointment of habeas counsel. Ex Parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) A Chapter 64 proceeding itself, however, is not a postconviction collateral attack. In Graves, the habeas applicant was claiming that his original habeas counsel was ineffective in failing to include several claims in the applicant’s original writ, and the narrow issue before the court was “whether applicant is entitled to have the merits of this ineffective assistance of prior habeas corpus claim heard on a subsequent writ.” In holding that there is no constitutional right to effective assistance of counsel on a writ of habeas corpus, a divided court rested its decision in part on the concern of endless ineffective-assistance litigation: “A claim of ineffective assistance of the prior habeas counsel would simply be the gateway through which endless and repetitious writs would resurrect.” That concern is not present in Chapter 64 proceedings � the Court of Criminal Appeals has tacitly approved of a successive Chapter 64 proceeding as a remedy for ineffective assistance. The court finds Graves’ Chapter 64 progeny unpersuasive. The court believes that due process requires the conclusion that the right to counsel � constitutional or statutory � is meaningless if effective assistance is not guaranteed. Ard has not shown a reasonable probability that, but for his allegedly ineffective counsel, the result would have been different, the court concludes. Therefore, he cannot prevail on his ineffective assistance of counsel claim. OPINION:Vance, J.; Gray, CJ, Vance and Reyna, JJ. CONCURRENCE:Gray, CJ. “I do not believe we can create a constitutional due process protection under the facts of this case. If we can, we should not because it is unnecessary to the disposition of the appeal. Due to time constraints, I will forgo an expansive discussion of why the majority’s analysis creating a constitutional due process right arising out of a statute is wrong. It is sufficient to note that a number of courts have determined that there is no Sixth Amendment right to the effective assistance of counsel when there is no constitutional right to counsel. . . . “I do not join in any part of the majority opinion. I concur only in the judgment of this Court affirming the trial court’s order which denied Ard’s motion for DNA testing.”

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