Opinion
NO. 03-16-00343-CR
08-17-2017
James Dwayne Hoisager, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 39,332, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING MEMORANDUM OPINION
Appellant James Dwayne Hoisager, an inmate proceeding pro se, has filed a notice of appeal from the district court's order denying his motion for forensic DNA testing. In a single point of error on appeal, Hoisager asserts that the district court erred in denying his motion. We will affirm the order.
BACKGROUND
In 2013, Hoisager was convicted of the offenses of aggravated kidnapping and aggravated assault. This Court affirmed Hoisager's convictions on appeal. Hoisager subsequently filed with the convicting court a motion for forensic DNA testing, requesting that a knife that was allegedly used during the commission of the offenses be subjected to DNA testing. The State filed a response in opposition to the motion, and the district court denied the motion without a hearing. This appeal followed.
See Hoisager v. State, No. 03-13-00328-CR, 2015 Tex. App. LEXIS 7402 (Tex. App.—Austin Jul. 17, 2015, pet. ref'd) (mem. op., not designated for publication).
STANDARD OF REVIEW
Post-conviction DNA testing is governed by Chapter 64 of the Code of Criminal Procedure. "In reviewing the trial judge's Chapter 64 rulings, this Court usually gives 'almost total deference' to the trial judge's findings of historical fact and application-of-law-to-fact issues that turn on witness credibility and demeanor, but we consider de novo all other application-of-law-to-fact questions." When, as here, the trial court holds no hearing on the motion for DNA testing, "the trial court is in no better position" than the reviewing court to determine the merits of the motion, "and we will review the issues de novo."
See Tex. Code Crim. Proc. arts. 64.01-.05.
Ex parte Gutierrez, 337 S.W.3d 883, 890 (Tex. Crim. App. 2011); see Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002)).
Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005); see Padilla v. State, No. 03-12-00299-CR, 2013 Tex. App. LEXIS 7481, *15 (Tex. App.—Austin June 20, 2013, pet. ref'd) (mem. op., not designated for publication).
ANALYSIS
To be entitled to DNA testing under Chapter 64, a convicted person must satisfy several requirements. "A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence that has a reasonable likelihood of containing biological material." "The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion." A convicting court may order DNA testing only if, among other requirements: (1) the evidence still exists and is in a condition making DNA testing possible; (2) identity was or is an issue in the case; and (3) the convicted person establishes by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. The person requesting DNA testing bears the burden of proof on these issues. To meet this burden, the convicted person must provide statements of fact supporting his claims; general, conclusory statements "will fail to satisfy the appellant's burden."
Id.
Id. art. 64.03(a).
See State v. Swearingen, 424 S.W.3d 32, 38 (Tex. Crim. App. 2014); Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
Swearingen v. State, 303 S.W.3d 728, 732 (Tex. Crim. App. 2010); see Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002); see also Padilla, 2013 Tex. App. LEXIS at *17.
Here, the district court found that Hoisager's motion did not "contain statements of fact in support of [Hoisager's] allegation that identity is an issue." We agree. In his motion, Hoisager pointed to no testimony or other evidence presented at trial tending to show that identity was an issue in the case. On the contrary, the evidence presented at trial, as summarized in this Court's opinion affirming Hoisager's conviction (a copy of which was attached to the State's response in opposition to the motion), would support a finding by the district court that identity was not an issue. The opinion recited the following:
On the morning of July 8, 2011, [Hoisager] went to Brenda's condominium, with her permission, to attend to some business on behalf of their daughter and to do his laundry. Although their daughter lived in the condominium with Brenda, Brenda and
[Hoisager] were alone that morning. [Hoisager] became upset, having recently learned that Brenda was romantically involved with another man. When Brenda asked [Hoisager] to leave he refused, prevented her from calling the police, held a knife to her throat, told her that they were going to go see God that night, and told her that he had paid someone to kill both of them.Nothing in the above suggests that the identity of the perpetrator was an issue in the case, and Hoisager's motion contains no statements of fact that would tend to show otherwise. "Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court erroneously determined" that Hoisager failed to show that he was entitled to DNA testing.
[Hoisager] held Brenda in the condominium at knife point for several hours or more. They struggled over Brenda's loaded pistol during this time, with [Hoisager] gaining control and putting it out of Brenda's reach. At some point in the afternoon, [Hoisager] drove Brenda to their church for a counseling session with their pastor, Ross Chandler. Brenda testified that she did not go to the church willingly and that [Hoisager] kept the knife on hand during the drive. [Hoisager] and Brenda met Chandler at their church and spoke about their relationship for approximately two hours before Chandler realized that something was amiss and removed Brenda from the situation. Brenda reported the incident to the police, who arrested [Hoisager].
Hoisager, 2015 Tex. App. LEXIS 7402, at *1-2.
See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (holding that "if DNA testing would not determine the identity of the person who committed the offense or would not exculpate the accused, then the [identity] requirement of [Chapter 64] has not been met").
See Dinkins, 84 S.W.3d at 642-43; Glover v. State, 445 S.W.3d 858, 862 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); Lyon v. State, 274 S.W.3d 767, 769-70 (Tex. App.—San Antonio 2008, pet. ref'd); In re McBride, 82 S.W.3d 395, 397 (Tex. App.—Austin 2002, no pet.); see also Rodriguez v. State, No. 11-14-00217-CR, 2016 Tex. App. LEXIS 9029, at *4-5 (Tex. App.—Eastland Aug. 18, 2016, no pet.) (mem. op., not designated for publication) (concluding that "identity was not an issue in the underlying trial" when "the issue for the jury to determine focused on the nature of appellant's conduct" rather than identity of perpetrator); Sims v. State, No. 03-14-00201-CR, 2014 Tex. App. LEXIS 13434, at *7-8 (Tex. App.—Austin Dec. 17, 2014, no pet.) (mem. op., not designated for publication) (identity not an issue where appellant failed to show that presence of third party's DNA or absence of defendant's DNA on weapons used in offense would conclusively establish that appellant "did not handle the weapons that were used to perpetrate the crime"); In re Kennard, No. 03-07-00308-CR, 2008 Tex. App. LEXIS 2415, at *5-9 (Tex. App.—Austin Apr. 3, 2008, no pet.) (mem. op., not designated for publication) (discussing cases concluding that "identity," for purposes of Chapter 64, "means only the identity of the perpetrator of the offense").
Additionally, although the district court's order focused on the identity requirement, the district court would not have erred in concluding that Hoisager also failed to satisfy his burden of proof with respect to at least one other requirement of Chapter 64. Specifically, Hoisager's motion contained no statements of fact tending to show that the knife he sought to test "has a reasonable likelihood of containing biological material." In its response to Hoisager's motion, the State represented that "there exists no biological material that was collected in this case and none exists at this time that would be in possession of the State of Texas, any law enforcement agency, or with the DPS laboratory." This statement was undisputed. Absent such biological material, Hoisager cannot show himself entitled to DNA testing of the knife.
See Tex. Code Crim. Proc. art. 64.01(a-1).
See Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i); Swearingen, 303 S.W.3d at 733.
We overrule Hoisager's sole point of error.
CONCLUSION
We affirm the district court's order.
/s/_________
Bob Pemberton Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: August 17, 2017 Do Not Publish