No. 14-08-00902-CR
Opinion filed September 1, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 230thDistrict Court Harris County, Texas, Trial Court Cause No. 632271.
Panel consists of Justices ANDERSON, GUZMAN, and BOYCE.
JOHN S. ANDERSON, Justice.
The trial court denied appellant's request for post-conviction DNA testing and specifically overruled appellant's constitutional argument regarding the statutorily required burden of proof. In two issues, appellant, John Earnest Christ, contends the requirement set forth in Texas Code of Criminal Procedure article 64.03(a)(2)(A), that the convicted person must establish by a preponderance of the evidence he would not have been convicted if exculpatory results had been obtained through DNA testing, violates appellant's right to due process of law under the Fourteenth Amendment of the United States Constitution and his right to due course of the law under the Texas Constitution Article I, Section 9. We affirm.
Appellant's arguments on appeal only relate to the constitutionality of the statute as applied to him. Appellant is not challenging the trial court's finding he failed to show by a preponderance of evidence he would not have been convicted if exculpatory results had been obtained through DNA testing.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, a jury found appellant guilty of the felony offense of attempted murder and assessed punishment at twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Tex. Penal Code Ann. §§ 19.02, 15.01 (Vernon 2003). This court affirmed appellant's conviction on appeal. Christ v. State, No. 14-93-00921-CR, 1996 WL 384945 (Tex. App.-Houston [14th Dist.] July 11, 1996, writ ref'd) (not designated for publication). In 2008, appellant moved for post-conviction DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art 64.01 (Vernon 2006). He requested forensic DNA testing on two bullets recovered from the crime scene that were not previously tested. Appellant claimed if DNA testing had been performed on the bullets, evidence would have supported his claim that the complainant attempted to commit suicide and appellant accidentally shot himself in the finger as he tried to unload the weapon. Appellant argued DNA testing would prove that he would not have been convicted had such evidence been available at trial. The State argued that no combination of the presence or absence of appellant's DNA on either bullet would provide, by a preponderance of the evidence, a reasonable probability appellant would not have been prosecuted or convicted. See Tex. Code Crim. Proc. Ann. art 64.03(a)(2)(A) (Vernon 2006). The trial court denied appellant's request for DNA testing. The court found appellant failed to prove by a preponderance of the evidence he would not have been convicted if exculpatory results had been obtained through DNA testing and thus, failed to meet the requirement of article 64.03(a)(2)(A). See id. Additionally, the trial court overruled appellant's argument that the statutory requirement violated the Fourteenth Amendment due process clause and the due course of law clause of the Texas Constitution because it requires the judge to substitute her judgment for that of the jury who convicted him. This appeal followed. DISCUSSION
Is the Statutory Requirement a Violation of Appellant's Federal and State Due Process Rights?
In two issues, appellant contends the statutory requirement of Texas Code of Criminal Procedure article 64.03(a)(2)(A), as applied to him, violates his federal and state due process rights. Specifically, appellant challenges the requirement that he, as a convicted person, must establish by a preponderance of the evidence he would not have been convicted if exculpatory results had been obtained through DNA testing. He contends the statute's burden of proof is a fundamentally unfair and impossible burden for appellant to meet and, as such, violates his rights to due process of the law under the United States Constitution and due course of law under the Texas Constitution. I. Standard of Review
We review the constitutionality of a criminal statute de novo, as a question of law. Lawson v. State, 283 S.W.3d 438, 440 (Tex. App.-Fort Worth 2009, no pet.). When reviewing the constitutionality of a statute, we presume that the statute is valid and that the legislature did not act arbitrarily and unreasonably in enacting the statute. Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). If a statute can be construed in two different ways, one of which sustains its validity, we apply the interpretation that sustains its validity. Id. The burden of establishing the unconstitutionality of the statue rests upon the person who challenges it. Id. II. Analysis Article 64.03 of the Texas Code of Criminal Procedure provides that "[a] convicting court may order a forensic DNA testing only if: . . . the convicted person establishes by a preponderance of the evidence that: the person would not have been convicted if exculpatory results had been obtained through DNA testing." Tex. Code Crim. Pro. Ann. art. 64.03(a)(2)(A) (Vernon 2006). The Court of Criminal Appeals has held article 64.03 requires a convicted person to prove that "had the results of the DNA test been available at trial, there is a 51% chance that the defendant would not have been convicted." Routier v. State, 273 S.W.3d 241, 257 (Tex. Crim. App. 2008). Appellant contends this requirement is fundamentally unfair and violates his Fourteenth Amendment due process right and his right to due course of law under the Texas Constitution. Specifically, appellant contends his federal and state due process rights are violated because it is fundamentally unfair to require him to convince a judge, by a preponderance of the evidence, he would not have been convicted because this burden requires the judge to substitute her judgment for that of the twelve jurors who rendered his verdict. Because the due course of law clause in Article I, Section 9 of the Texas Constitution does not provide any greater protection than the Fourteenth Amendment's due process clause, we will address appellant's two issues together. Rodriguez v. State, 21 S.W.3d 562, 568 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). A criminal statute is presumed to be constitutional and the burden of establishing the unconstitutionality of the statute rests upon the individual who challenges it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978); Duncantell, 230 S.W.3d at 843. "Every reasonable intendment and presumption will be made in favor of the constitutionality and validity of a statute, until the contrary is clearly shown." Ex parte Granviel, 561 S.W.2d at 511. Due process only requires that the most basic procedural safeguards are observed. Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 2327, 53 L. Ed. 2d 281 (1977). States have considerable expertise in matters of criminal procedure and it is appropriate to exercise substantial deference to legislative judgments in this area. Herrera v. Collins, 506 U.S. 390, 407, 113 S. Ct. 853, 864, 122 L. Ed. 203 (1993); Medina v. California, 505 U.S. 437, 446, 112 S. Ct. 2572, 2577-78, 120 L. Ed. 2d 353 (1992). The State has the power to regulate the procedures under which laws are to be carried out, including the burden of producing evidence and the burden of persuasion, without violating the due process clause, unless it offends some principle of justice so deeply rooted in the traditions and conscience of our people as to be ranked as fundamental. Medina, 505 U.S. at 445; Patterson, 432 U.S. 197 at 210-14. In criminal law, infractions that violate fundamental fairness have been interpreted very narrowly and do not extend beyond the specific guarantees enumerated in the Bill of Rights. Medina, 505 U.S. at 443. A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man and the presumption of innocence disappears. Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2320 (2009); Herrera, 506 U.S. at 399. Thus, in the eyes of the law, appellant does not come before the Court as one who is "innocent," but on the contrary, as one who has been convicted by due process of law of attempted murder. See Herrera, 506 U.S. at 399-400; Osborne, 129 S. Ct. at 2320. Accordingly, the State has more flexibility in deciding what procedures are needed in the context of post-conviction relief. Osborne, 129 S. Ct. at 2320. When a State chooses to offer help to those seeking relief from convictions, due process does not dictate the exact form such assistance must assume. Id. The issue in the present case is whether consideration of appellant's claim within the framework of the State's procedures for post-conviction DNA testing offends some principle of justice so deeply rooted in the traditions and conscience of our people so as to be ranked as fundamental or transgresses any recognized principle of fundamental fairness in operation. See id. Courts may modify a State's post-conviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided. Id. Article 64.03 provides for post-conviction DNA testing if the appellant can establish by a preponderance of the evidence he would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Pro. Ann. art. 64.03(a)(2)(A). In Osborne, the United States Supreme Court found a similar post-conviction DNA testing statute did not violate the due process clause. Osborne, 129 S. Ct. at 2320-21 (upholding Alaska's post-conviction DNA testing statute that provided a substantive right to be released on a sufficiently compelling showing of new evidence that established actual innocence, provided for discovery in post-conviction proceedings, and specified that such discovery was available to those seeking access to DNA evidence). Furthermore, article 64.03's procedures are similar to those provided for DNA evidence by federal law, which is not inconsistent with the traditions and conscience of our people or any recognized principle of fundamental fairness. See 18 U.S.C. § 3600(a) (2006) (provides for post-conviction DNA testing if the applicant can show that the evidence would establish actual innocence or a reasonable probability that the applicant did not commit the crime); Osborne, 129 S. Ct. at 2320-21. There is nothing fundamentally inadequate about article 64.03's procedure for post-conviction DNA testing and we should defer to the legislature's determinations. See Osborne, 129 S. Ct. at 2320; Herrera, 506 U.S. at 407. Further, there is no historical right to post-conviction DNA testing and neither the Federal or Texas Constitution mentions the right to post-conviction DNA testing. See Curry v. State, 186 S.W.3d 39, 43 (Tex. App.-Houston [1st Dist.] 2005) (holding a facial challenge to article 64.03 would fail since the United States Constitution does not require the State to provide post-conviction DNA testing and appellant cites no authority for such a requirement in the Texas Constitution); Prible v. State, 245 S.W.3d 466, 469 (Tex. Crim. App. 2008) (stating there is no constitutional right to post-conviction DNA testing in order to determine the presence of a third-party's DNA). Article 64.03 does not offend a principle of justice so deeply rooted in the traditions and conscience of our people so as to be ranked as fundamental nor does it transgress any recognized principle of fundamental fairness in operation. Therefore, the statute does not violate appellant's due process rights. CONCLUSION
Appellant has failed to show that the statutorily required burden is unconstitutional under the due process clause of the Fourteenth Amendment or the due course of law clause of Article I, Section 9 of the Texas Constitution. Accordingly, we overrule both of appellant's issues on appeal and affirm the judgment of the trial court.