Opinion
NO. 14-15-00145-CR
01-21-2016
DAVID EARL SWEED, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 335th District Court Washington County, Texas
Trial Court Cause No. 14907
MEMORANDUM OPINION
Appellant David Earl Sweed challenges the trial court's denial of his motion for post-conviction DNA testing. We affirm.
BACKGROUND
Appellant was indicted for aggravated sexual assault of a child on May 30, 2006. After a jury trial appellant was convicted and sentenced to confinement for 45 years. This court affirmed appellant's conviction in 2008. Sweed v. State, No. 14-07-00772-CR, 2008 WL 4735221 (Tex. App.—Houston [14th Dist.] Oct. 30, 2008, pet. dism'd) (mem. op.) (not designated for publication).
On July 17, 2014, appellant filed a motion for post-conviction DNA testing requesting the convicting court "to examine all the biological evidence preserved . . . and test said evidence for the presence of foreign blood, saliva, or semen that does not match [appellant]'s." The State contacted the Department of Public Safety Lab and the Washington County Sheriff's Office and determined that no forensic evidence existed when the case was prosecuted, nor does it exist today. Therefore, the State argued, the court cannot make the necessary findings for testing under the Code of Criminal Procedure. The trial court denied appellant's motion, finding that the motion failed to state "what is to be tested."
On appeal, appellant challenges the trial court's denial of his motion.
STANDARD OF REVIEW
We review a trial court's denial of a request for post-conviction DNA testing under a bifurcated standard. See Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009). We defer to a trial court's findings of fact when they are supported by the record. Id. We also defer to a trial court's application of law to fact questions that turn on credibility and demeanor. Id. We review pure legal issues de novo. Id. If the trial court's decision is correct on any theory of law applicable to the case, we will sustain the decision. State v. Ross, 32 S.W.3d 853, 855-56 (Tex. Crim. App. 2000).
ANALYSIS
Texas Code of Criminal Procedure article 64.01 provides a convicted person with a procedural vehicle to have forensic testing of DNA material that is contained within existing evidence. The statute provides:
(a) A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence 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.Act of September 1, 2011, 82d Leg., R.S., ch. 278, § 5, sec. 64.01, 2011 Tex. Sess. Law. Serv. 882, 884; Act of September 1, 2011, 82d Leg., R.S., ch. 366, § 1, sec. 64.01, 2011 Tex. Sess. Law. Serv. 1015, 1015 (West) (amended 2015) (current version at Tex.Code Crim. Proc. § 64.01).
(b) The motion may request forensic DNA testing only of evidence described by Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but:
(1) was not previously subjected to DNA testing:
(A) because DNA testing was:
(1) not available; or
(ii) available, but not technologically capable of providing probative results; or
(B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or
(2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.
The 2015 amendment to article 64.01 applies to motions filed on or after September 1, 2015, and is inapplicable here. All subsequent citations will be to the statute in effect at the time appellant's motion was filed. --------
Article 64.01(b) specifies the parameters of the defendant's motion for DNA testing, limiting it to "evidence described by Subsection (a) that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the [S]tate during the trial of the offense." See id. art. 64.01(b). In response to a defendant's motion filed under article 64.01, not later than 60 days after service of the motion, the State must either "deliver the evidence to the [trial] court" or "explain in writing to [that] court why the [S]tate cannot deliver the evidence to the court." See id. art. 64.02(a)(2)(A)-(B).
To be entitled to post-conviction DNA testing under article 64.03, a convicted person must establish that (1) the evidence exists in a condition making DNA testing possible; (2) the evidence has been subjected to a sufficient chain of custody to establish its integrity; (3) identity was or is an issue in the case; (4) he would not have been convicted if exculpatory results had been obtained through DNA testing; and (5) the request for DNA testing is not made to unreasonably delay the execution of his sentence or interfere with the administration of justice. Id. art. 64.03(a); Dinkins v. State, 84 S.W.3d 639, 641-42 (Tex. Crim. App. 2002).
In Dinkins, the court of criminal appeals found that the movant for DNA testing failed to specifically identify the biological material that he wanted to test. See Dinkins, 84 S.W.3d at 642. Additionally, the court held that a trial court is not obligated to order testing before a convicted person establishes by a preponderance of the evidence that there is a reasonable probability that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See id. at 643.
The tenor of articles 64.02 and 64.03 is to provide an appellant with post-conviction access to existing biological samples for the purpose of DNA testing, not a carte blanche discovery mechanism to comb the laboratories and police departments of this State for unidentified "evidence." Here, appellant filed a motion in which he requested that the court "examine all the biological evidence . . . , and test said evidence for the presence of foreign blood, saliva, or semen that does not match [appellant]'s." Appellant's motion is unsworn and contains no supporting affidavit alleging what evidence he wants to have tested. The State confirmed that no biological evidence existed at the time of trial, and none exists today.
On appeal, appellant complains generally about his underlying conviction alleging certain witnesses perjured themselves and alleging newly discovered exculpatory evidence. We do not consider post-trial evidence when deciding whether the appellant has carried his burden to establish by a preponderance of the evidence that he would not have been convicted had exculpatory results been obtained through DNA testing. See Holberg v. State, 425 S.W.3d 282, 285 (Tex. Crim. App. 2014). Thus, despite newly asserted post-trial factual developments that appellant calls upon us to consider, our review is limited to discerning whether, and to what extent, exculpatory results from a DNA testing of preserved evidence alter the landscape if added to the mix of evidence that was available at the time of trial. See id. Because appellant has not identified any evidence, and the State confirmed no evidence exists to test, there are no potential exculpatory results to review.
Appellant has failed to satisfy the requirements of Chapter 64 by failing to identify evidence subject to testing. We hold that the convicting court did not erroneously deny appellant's request for DNA testing.
We affirm the trial court's judgment.
/s/ William J. Boyce
Justice Panel consists of Chief Justice Frost and Justices Boyce and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).