Terrance Ford v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00080-CR
___________________________
TERRANCE FORD, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 16th District Court
Denton County, Texas
Trial Court No. F-2007-2317-A
Before Sudderth, C.J.; Pittman and Birdwell, JJ.
Opinion by Justice Birdwell
MEMORANDUM OPINION
Pro se appellant Terrance Ford appeals the trial court’s denial of his
postconviction motion for scientific testing. We construe his brief as raising two
issues: the trial court erred by not appointing counsel to represent him, and the trial
court erred by denying his motion on its merits. We reject both arguments and affirm
the trial court’s order denying the postconviction motion.
Background
In 2009, Ford began serving a sentence of confinement for life for possessing
while intending to deliver nearly four kilograms of cocaine.1 In 2018, he filed a motion
for postconviction scientific testing under chapter 64 of the code of criminal
procedure.2 He alleged that items “collected in relation to the offense” could “yield
[detectable] and testable physical evidence that was . . . not tested nor detected for the
[trial].” More specifically, he appeared to ask for testing to determine the presence of
“adulterants and dilutants” within the cocaine. He did not explain how the presence
of adulterants or dilutants, if any, would impact his conviction. Rather, in a conclusory
fashion, he stated that the presence of adulterants or dilutants would be
“exculpatory.” He also filed a motion for the appointment of counsel.
1
See Ford v. State, No. 02-09-00112-CR, 2010 WL 4261601, at *1–*3 (Tex.
App.—Fort Worth Oct. 28, 2010, pet. ref’d) (mem. op., not designated for
publication).
2
See Tex. Code Crim. Proc. Ann. arts. 64.01–.05 (West 2018).
2
In the State’s response, it argued that “testing of the seized cocaine, and any
attendant adulterants or dilutants, is . . . outside the purview of Chapter 64.” The State
further represented that no law enforcement entity possessed testable biological
material related to Ford’s case.
The trial court denied Ford’s request for the appointment of counsel, finding
that he did not have reasonable grounds for filing his chapter 64 motion. The trial
court also denied Ford’s motion for testing of the cocaine. Ford brought this appeal.
No Entitlement to Testing or to Counsel
Ford appears to argue that the trial court erred by denying his chapter 64
motion on its merits and by denying his motion for the appointment of counsel.
Chapter 64 allows a convicted person to file in the convicting court a motion for
forensic DNA testing of evidence that has a reasonable likelihood of containing
biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a-1). “Biological material”
includes “blood, semen, hair, saliva, skin tissue or cells, fingernail scrapings, bone,
bodily fluids, or other identifiable biological evidence that may be suitable for forensic
DNA testing.” Id. art. 64.01(a)(1). Upon receipt of a chapter 64 motion, the
convicting court “shall appoint counsel for the convicted person if . . . the court finds
reasonable grounds for a motion to be filed, and the court determines that the person
is indigent.” Id. art. 64.01(c). The court may grant a chapter 64 motion only if the
court finds that, among other requirements, “there is a reasonable likelihood that the
evidence contains biological material suitable for DNA testing.” Id. art. 64.03(a)(1)(B).
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In his motion for postconviction scientific testing, Ford did not allege that any
evidence exists that may contain biological material, and he did not ask for DNA
testing. Rather, he asked for testing of cocaine for the presence of adulterants or
dilutants. As the State argued in the trial court, such testing is beyond the scope of
chapter 64, and the trial court had no authority to consider granting it. See id. arts.
64.01(a-1), .03(a)(1)(B); see also Ex Parte White, 506 S.W.3d 39, 51 (Tex. Crim. App.
2016), cert. denied, 138 S. Ct. 136 (2017); Sheppard v. State, No. 02-12-00234-CR, 2013
WL 3488264, at *1 (Tex. App.—Fort Worth July 11, 2013, pet. ref’d) (mem. op., not
designated for publication) (“In this case, Sheppard is attempting to use his chapter 64
motions to test the amount of a controlled substance and not DNA. This he cannot
do.”); Jones v. State, No. 13-05-00718-CR, 2006 WL 1919823, at *3 (Tex. App.—
Corpus Christi July 13, 2006, pet. ref’d) (mem. op., not designated for publication)
(“Testing of weights and types of cocaine is beyond the scope of chapter 64 because
the chapter does not authorize . . . testing of non-biological material.”). Because
Ford’s motion did not meet chapter 64’s requirements, we hold that the trial court did
not err by denying it. See Sheppard, 2013 WL 3488264, at *1.
Likewise, the trial court did not err by denying Ford’s motion for the
appointment of counsel. For the reasons stated above, we hold that the trial court
reasonably found that no reasonable grounds existed for Ford’s motion for
postconviction testing, and we conclude that the trial court therefore did not err by
not appointing counsel. See Tex. Code Crim. Proc. Ann. art. 64.01(c); Ex parte
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Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (“Reasonable grounds are
present when the facts stated in the request for counsel or otherwise known to the
convicting court reasonably suggest that a ‘valid’ or ‘viable’ argument for testing can
be made.”); Duran v. State, No. 02-17-00405-CR, 2018 WL 3075030, at *3 (Tex.
App.—Fort Worth June 21, 2018, pet. ref’d) (mem. op., not designated for
publication).
Finally, to the extent that Ford’s arguments on appeal broadly challenge his
conviction on other grounds, those challenges are beyond the scope of a chapter 64
proceeding, and we do not consider them. See In re Garcia, 363 S.W.3d 819, 822 (Tex.
App.—Austin 2012, no pet.).
For all of these reasons, we overrule Ford’s issues.
Conclusion
Having overruled Ford’s issues, we affirm the trial court’s order denying his
motion for postconviction scientific testing.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: September 27, 2018
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