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Click here for the full text of this decision FACTS:Darren Keith James’ motion for post-conviction forensic DNA testing, Texas Code of Criminal Procedure Art. 64.01, did not allege the existence of any biological material that could be subjected to DNA testing, but merely stated that James’ accuser was examined by a doctor at the time the accusation was made. The trial court denied the motion because it failed to specify what evidence James wished to have tested for DNA. HOLDING:Affirmed. The state argues that the court should follow an unpublished opinion, McGuire v. State, No. 07-03-0288-CR, 2003 Tex. App. LEXIS 10100 (Tex. App. – Amarillo Dec. 1, 2003, no pet.) (not designated for publication), and concludes that the court lacks subject-matter jurisdiction to consider any issue related to a trial court’s failure to appoint counsel for post-conviction DNA testing. The Amarillo court noted that a trial court has a mandatory duty to provide an indigent applicant with appointed counsel for purposes of filing an application for post-conviction DNA testing. Nevertheless, the Amarillo court continued, “the statute provides for an appeal only of a finding under article 64.03 or 64.04 of the Code of Criminal Procedure . . . .” McGuire’s appeal was from an order entered pursuant to Article 64.01(c), which the Amarillo court concluded was non-appealable under Article 64.05. Effective Sept. 1, 2003, the Texas Legislature amended Article 64.05 by removing the limitation that an appealable order concern either Article 64.03 or Article 64.04. Because the applicable statute no longer limits an appeal to rulings under Article 64.03 or 64.04, the court disagrees with the state’s contention that the court lacks subject-matter jurisdiction over James’ appeal. The Texas Legislature has mandated that a trial court provide court-appointed counsel to an applicant pursuing post-conviction DNA testing, but only if three criteria are first met: 1. the applicant must tell the trial court that he or she wishes to submit an application for post-conviction DNA testing, 2. the trial court must find reasonable grounds for the application to be filed, and 3. the court must determine the applicant is indigent. James’ affidavit merely states, “The accuser was infact [sic] examined by a Medical doctor at the time this accusation was made.” Such a statement amounts to no suggestion that any biological evidence was obtained during, or retained from, any such examination. A motion for post-conviction DNA testing may request testing only of evidence containing biological material “that was secured in relation to the offense that is the basis of the challenged conviction . . . .” Texas Code of Criminal Procedure Art. 64.01(b). James’ motion does not make this statutorily required request, nor does it allege facts which would form the basis of a finding that the motion was reasonable. The trial court properly denied James’ request for court-appointed counsel because his application fails to show there is any reasonable ground for the application. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, J.J.

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