No. 14-06-00045-CR
Opinion filed April 26, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas, Trial Court Cause No. 872,931.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
EVA M. GUZMAN, Justice.
Melvin V. Jones appeals the trial court's denial of his motion for post-conviction DNA testing on various constitutional and evidentiary grounds. The issues raised by appellant are well settled; we therefore affirm the order of the trial court.
See Mimms v. State, No. 14-02-01196-CR, 2003 WL 21543499 (Tex.App. — Houston [14th Dist.] July 10, 2003, pet. ref'd) (not designated for publication); see also Mearis v. State, 120 S.W.3d 20 (Tex.App. — San Antonio 2003, pet. ref'd); Cravin v. State, 95 S.W.3d 506 (Tex.App. — Houston [1st Dist.] 2002, pet. ref'd).
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of possession of cocaine and sentenced to sixty year's confinement. The conviction and sentence were affirmed on March 7, 2003. Jones v. State, No. 06-02-00076-CR, 2003 WL 876564 (Tex.App.-Texarkana March 7, 2003, pet. ref'd) (not designated for publication). Beginning in November 2003, appellant filed multiple pro se motions requesting post-conviction forensic DNA testing on the plastic bag in which police found the cocaine that was the basis of appellant's conviction. Appellant filed his most recent motion for preservation and forensic testing of DNA evidence on July 15, 2005. The State filed a motion in opposition to appellant's motions on October 17, 2005, and attached the supporting affidavits of (1) Jeremy Warren, the exhibits clerk with the Harris County District Clerk's office, (2) K.L. McGinnis, the property and evidence records custodian with the Houston Police Department, and (3) Reidun Hilleman, the property and records custodian with the Houston Police Department Crime Lab. Warren, McGinnis, and Hilleman confirmed that the records of their respective offices do not reflect that the plastic bag is in their possession. On January 10, 2006, the trial court denied appellant's request for DNA testing. Based on the affidavits of Warren, McGinnis, and Hilleman, the trial court found that appellant "fail[ed] to meet the requirement of Tex. Code Crim. Proc. art. 64.03(a)(1), showing that the evidence still exist[ed] and [was] in a condition making DNA testing possible." The trial court further found, "based on the lack of evidence, that [appellant] fail[ed] to show, by a preponderance of the evidence, that a reasonable probability exist[ed] that [appellant] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Appellant timely filed this appeal. II. ISSUES PRESENTED
Appellant presents five issues for our review. In the first two, he asserts that his federally-protected right to due process and state-protected right to confrontation and cross-examination were violated when the trial court held a hearing on his motions for post-conviction DNA testing in his absence. In his third and fourth issues, he contends his federally-and state-protected rights to confrontation and cross-examination were violated when the trial court denied him the opportunity to confront and cross-examine the witnesses who "appeared" at his hearing via the State's affidavits. Finally, he complains that the State's affidavits are inadmissible hearsay, and thus, the trial court erred when it considered the affidavits in denying appellant's motions for DNA testing. III. ANALYSIS
In his brief, as a preliminary matter, appellant states that he preserved error on all five issues raised on appeal by filing written objections with the trial court. He asserts that the trial court overruled these objections in writing. These objections and the trial court's rulings on the objections are not in our record. To preserve an issue for appeal, the record must reflect that a complaint was made to the trial court and that the trial court either ruled or refused to rule on the complaint. TEX. R. APP. P. 33.1(a); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990) (en banc) (noting that "[e]ven constitutional errors may be waived by failing to object"). Thus, our record does not reflect that appellant preserved error on any of his issues. But even if appellant had preserved error on these issues, none of them would provide any basis for relief. After a defendant files a motion for post-conviction forensic DNA testing, the trial court may order DNA testing only if, as is relevant here, the court finds the evidence still exists and is in a condition making DNA testing possible. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A) (Vernon Supp. 2003). A hearing is only required after the trial court examines the results of any DNA testing. See id. § 64.04. Appellant's issues are based on the erroneous presumption that chapter 64 also requires the convicting court to conduct an evidentiary hearing to determine whether pertinent evidence exists. But the Court of Criminal Appeals has determined that nothing in chapter 64 requires the trial court to conduct a hearing to determine whether a defendant is entitled to DNA testing. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004); Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App. 2002). Thus, contrary to appellant's assertions, the trial court is not required to hold an evidentiary hearing to determine whether to order DNA testing, but may rely on the motion and the State's written response. Mearis v. State, 120 S.W.3d 20 (Tex.App.-San Antonio 2003, pet. ref'd); Cravin v. State, 95 S.W.3d 506 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). The appellate record in this case does not reflect that the trial court conducted an oral hearing. But, even if the trial court did hold an oral hearing, and appellant was not present, nothing in the United States or Texas constitutions entitles appellant to be present. See Mearis, 120 S.W.3d at 24; Cravin, 95 S.W.3d at 510. Instead, "like an applicant for post-conviction writ of habeas corpus, an applicant for a post-conviction DNA proceeding enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing." Cravin, 95 S.W.3d at 510. Moreover, for the same reasons that appellant has no right to be physically present at such a hearing, appellant does not have the right to cross-examine witnesses. Mearis, 120 S.W.3d at 25; Cravin, 95 S.W.3d at 510-11. Accordingly, we overrule appellant's first, second, third, and fourth issues. Turning to appellant's final issue, he contends that the trial court committed reversible error by admitting the State's affidavits because they constitute inadmissible hearsay. Appellant states he was "entitled to have the rules of evidence applied in any hearing where his right to DNA testing [was] finally determined." But because no evidentiary hearing is required in considering whether DNA evidence exists, the rules of evidence are not necessarily implicated. See Mearis, 120 S.W.3d at 25; Cravin, 95 S.W.3d at 511. Indeed, the trial court could have based its determination solely on the State's written response without considering the affidavits. See Whitaker, 160 S.W.3d at 8-9; Cravin, 95 S.W.3d at 509. Under these circumstances, we overrule appellant's fifth issue. Having overruled each of appellant's issues, we affirm the judgment of the trial court.