¶1concurring.
¶2I 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. Further, Ard has not properly preserved or adequately argued a violation of the due process clause of either the state or federal constitution. A majority of this Court has, on more than one occasion, been reversed for making dispositive arguments for defendants. Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App.2003); Hailey v. State, 87 S.W.3d 118 (Tex.Crim.App.2002). But now the majority makes an argument for a defendant in a case where it does not affect the result. That means *348there is less chance of getting this statement scrutinized by a higher court.
¶3I have previously opined there was no need to abate this proceeding for the appointment of appellate counsel. Ard v. State, 166 S.W.3d 387 (Tex.App.-Waco 2005) (Gray, C.J., dissenting from unpublished order). For the reasons expressed in the relevant portions of that dissenting opinion, including the appendices incorporated into that opinion, the trial court could not have erred in denying the motion for DNA testing.
¶4I 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.