No. 14-03-00151-CR.
Memorandum Opinion filed April 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 311,735. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
EVA M. GUZMAN, Justice.
This is an appeal from the denial of appellant's post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings six issues challenging the denial of his motion and the constitutionality of the proceedings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.1. We affirm.
I. BACKGROUND
In February of 2002, appellant filed a post-conviction motion requesting, inter alia, DNA testing of any evidence containing biological material in the State's possession from his 1980 trial and conviction for murder. The trial court appointed counsel to represent appellant. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant's motion and provided affidavits and supporting documentation of the condition of the evidence. The trial court found that appellant failed to establish evidence still exists in a condition making DNA testing possible or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See TEX. CODE CRIM. PROC. ANN. arts. 64.03(a)(1)(A)(i), 64.03(a)(2)(A) (Vernon Supp. 2004). Accordingly, the court denied testing by written order containing its findings and conclusions signed January 22, 2003. Appellant filed a timely, written notice of appeal. II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court's decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Accordingly, we afford almost total deference to the trial court's determination of historical fact issues and the application of law to the fact issues that turn on credibility and demeanor. Id. However, we review de novo the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id. Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established: (a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
Act of April 5, 2001, 77th Leg. R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2004)). By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim. App. 2002). III. APPELLANT'S ISSUES
In his first four issues, appellant argues the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution by (1) conducting a final hearing on the motion without his presence, and (2) denying him the opportunity to confront and cross-examine witnesses. The First Court of Appeals considered the same issues in Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd), and held them to be without merit. We have followed the reasoning of our sister court in addressing these issues. See Thompson v. State, 123 S.W.3d 781, 784 (Tex. App.-Houston [14th Dist.] 2003, no pet. h.). We hold appellant's claims are groundless and overrule issues one through four. In his fifth issue, appellant argues that the trial court erred in considering inadmissible hearsay affidavits submitted by the State. No hearing is required before a trial court makes its determination under article 64.03 whether to order forensic DNA testing. See Rivera v. State, 89 S.W.3d 55, 58 (Tex.Crim.App. 2002). The statute specifically contemplates a post-conviction proceeding with submission of affidavits from the applicant and a written response from the State, rather than an evidentiary hearing. See TEX. CODE CRIM. PROC. ANN. arts. 64.01(a), 64.02(2)(B) (Vernon Supp. 2004). Moreover, the State is not required to file affidavits with its response to an applicant's motion for DNA testing; the court may reach a decision based solely on the convicted person's motion and affidavit and the State's response. Cravin, 95 S.W.3d at 509. Therefore, the trial court's decision need not be based on the State's affidavits. We overrule appellant's fifth issue. In his sixth issue, appellant contends the trial court erred in denying his motion for DNA testing because the State failed to establish that the requested materials were no longer in its possession. Specifically, appellant argues that the State failed to show no other law enforcement entity or outside laboratories or agencies might have come into possession of and still retained evidence related to his case. In response to appellant's motion, the State explained that some of the evidence from appellant's trial had been destroyed. The State provided affidavits from the Harris County District Clerk's Office and the Houston Police Department Crime Laboratory, stating that the requested materials were not in their possession or had been destroyed. However, an affidavit from the Houston Police Department Property Room stated that it possessed a "M.E. Box" and seventeen "shot shells." The existence of this evidence is of no consequence, however, because the statute requires appellant to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See TEX CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A); Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim.App. 2002) (stating trial court is never required to grant a motion for DNA testing absent a showing under 64.03(a)(2)(A)); Kutzner v. State, 75 S.W.3d 427, 436-39 (Tex.Crim.App. 2002) (construing article 64.03(a)(2)(A) to mean a convicted person must show reasonable probability exists that exculpatory DNA testing would prove innocence); Thompson v. State, 123 S.W.3d 781, 786 (Tex. App.-Houston [14th Dist.] 2003, no pet. h.) (stating that even if the convicting court found evidence still existed appellant failed to demonstrate a reasonable probability that he would not have been convicted if exculpatory results had been obtained). Here, the court found appellant failed to meet his burden to establish this requirement by a preponderance of the evidence. Appellant does not challenge this finding on appeal. Accordingly, the trial court did not err in denying appellant's motion for post-conviction DNA testing. Dinkins, 84 S.W.3d at 643. We overrule appellant's sixth issue. Accordingly, the judgment of the trial court is affirmed.