in Re Johnny Wayne White, II ( 2006 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00230-CR
In re Johnny Wayne White, II
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 47,692, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
In February 1998, Johnny Wayne White, II was sentenced to twenty years in prison
following his conviction for aggravated robbery. On March 13, 2006, White filed a pro se motion
for appointment of counsel for the purpose of requesting forensic DNA testing. See Tex. Code Crim.
Proc. Ann. art. 64.01(c) (West Supp. 2005). On March 24, 2006, the district court signed an “order
dismissing DNA testing motion.” White filed a pro se notice of appeal, after which the trial court
appointed counsel to represent White on the appeal.
In its order, the trial court found that White failed to identify the evidence to be tested
or to submit a supporting affidavit. See id. art. 64.01(a), (b). But the motion before the court was
not a motion for testing for which the missing items are requisites; it is a request for appointed
counsel to prepare and file a motion for testing. The order prematurely dismisses—in effect,
denies—a motion for DNA testing that has not yet been filed. The order does not rule on the motion
for counsel.
The “order dismissing DNA testing motion” is reversed and the cause is remanded
to the district court for further proceedings.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Pemberton
Reversed and Remanded
Filed: September 20, 2006
Do Not Publish
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