Vidales v. State

Full title: JOE VIDALES, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: Jun 17, 2004

No. 01-03-00458-CR (Tex. App. Jun. 17, 2004)

Opinion

No. 01-03-00458-CR

Opinion issued on June 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 230th District Court Harris County, Texas, Trial Court Cause No. 676525.

Panel consists of Justices TAFT, JENNINGS, and HANKS.

MEMORANDUM OPINION

GEORGE C. HANKS, JR., Justice.

A jury found appellant, Joe Vidales, guilty of attempted murder and assessed punishment at 32 years' confinement. Appellant subsequently filed a motion requesting post-conviction DNA testing, which the convicting court denied. Appellant's appointed counsel filed a brief stating that, in his opinion, the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim. App. 1969). Appellant filed a pro se brief. In four issues, appellant contends that "[t]here were no samples by the Houston Police Department Crime Scene on atomic absorption," the State did not have probable cause to arrest appellant, and the State searched appellant's apartment without a warrant, the enhancement paragraph of appellant's indictment for attempted murder violated the double jeopardy clause, appellate counsel provided ineffective assistance, and appellant did not receive a fair trial and, thus, is entitled to DNA testing. We affirm.

Background

Appellant's motion requesting DNA testing on any evidence in the State's possession containing biological material did not identify the biological evidence upon which appellant sought testing. In its response, the State tendered affidavits from: (1) Melchora Vasquez, Harris County District Clerk's Office exhibits clerk, who stated that her office possessed photographs, a "pen packet" and a stipulation of evidence relating to appellant's trial; (2) Jim Bolding, Houston Police Department (HPD) Crime Lab records custodian, who stated that his office had received no evidence relating to appellant's case; (3) Robert Baldwin, HPD Firearms Laboratory records custodian, who stated that his office never possessed any evidence relating to appellant's case; and (4) K.L. McGinnis, HPD records custodian, who stated and provided documentary evidence establishing that the evidence previously in HPD's custody relating to appellant's case — four fired .22 cartridge casings — had been destroyed on December 10, 1993. The trial court denied appellant's motion and adopted the State's proposed findings of fact and conclusions of law, finding, in part, that appellant failed to show that (1) biological evidence still existed in a condition making DNA testing possible and (2) a reasonable probability existed that he would not have been prosecuted or convicted had exculpatory test results been obtained through DNA testing.

Complaints Regarding Original Conviction

In his first issue, appellant contends that "[t]here were no samples . . . on atomic absorption[,] . . . no probable cause to arrest the appellant . . . [, and] no reason to search the appellant['s] apartment without a warrant." In his second issue, appellant contends that

The enhancement paragraph of [appellant's indictment for] attempted murder violates the double jeopardy clause . . . [and] appellant was never convicted for attempted murder as the indictment read. On a Motion Nunc Pro Tunc[,] the response read that the appellant is serving [his] sentence for aggravated assault w/[a] deadly weapon. This also violates the double jeopardy clause.

Because he may only appeal his original conviction directly, we do not address the merits of appellant's first two issues. See Watson v. State, 96 S.W.3d 497, 500 (Tex. App.-Amarillo 2002, pet. ref'd) (holding that an appeal from the denial of a motion for forensic DNA testing is limited to the findings of the lower court in non-capital cases). Here, appellant's notice of appeal expressly stated that it was to appeal matters relating to appellant's motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004) (providing that trial court's findings for post-conviction DNA motions are appealable to court of appeals in non-capital cases). The notice of appeal relating to appellant's original conviction was not assigned to this Court and is not the subject of the instant appeal. We hold that we are without jurisdiction to consider appellant's first two issues relating to his original conviction. See Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.-Corpus Christi 2003, no pet.) (holding that jurisdiction afforded to appellate court for post-conviction DNA motions does not extend to collateral attacks on judgment of conviction or resurrect issues that could have been previously challenged on direct appeal). Accordingly, we dismiss appellant's first and second issues for lack of jurisdiction.

Ineffective Assistance

In his third issue, appellant contends that his appellate counsel "was not a reasonable assistance and bottom line he was never effective assistance of counsel." To prevail on an ineffective assistance of counsel claim, an appellant must first prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Bell v. State, 90 S.W.3d 301, 307 (Tex.Crim.App. 2002) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)). He must then show that this deficient performance prejudiced his defense. Bell, 90 S.W.3d at 307. Appellant questions his counsel's professional ability and argues that his counsel "chose words to harm this appeal" and "failed to perform a service paid by the State of Texas." Admittedly, without authority, the State responds that a convicted person has no constitutional right to counsel when pursuing post-conviction DNA testing. Assuming, without deciding that appellant may raise a claim of ineffective assistance arising from a proceeding under chapter 64 of the Texas Code of Criminal Procedure, to prevail on his claim, the record reveals that there is no biological matter to subject to DNA testing and the appeal is objectively frivolous. Appellate counsel filed an Anders brief and complied with its requirements. See Gainous, 436 S.W.2d at 138. Nothing in the record shows that, under the facts and circumstances of this case, appellate counsel's representation fell below the standards of professional norms. We overrule appellant's third issue.

Denial of Post-Conviction DNA Motion

In his fourth issue, appellant contends that the trial court erred in denying his motion for DNA testing. Appellant argues that the outcome of the trial would have differed if four bullet "hulls" had undergone DNA testing. In reviewing the trial court's decision on a motion for post-conviction DNA testing, we afford almost total deference to the trial court's determination of historical-fact issues and application of law-to-fact issues that turn on credibility and demeanor, while we review de novo other application of law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim. App. 2002). However, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have proven innocence is an application of law-to-fact question that does not turn on credibility and demeanor and is, therefore, reviewed de novo. Id. Before granting post-conviction DNA testing, the trial court must first determine whether identity was or is an issue in appellant's case and whether evidence still exists, is in a condition making DNA testing possible, and has been subjected to a chain of custody sufficient to establish that it has not been altered. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2004). Second, the trial court must determine whether appellant established by a preponderance of the evidence that "a reasonable probability exists that [he] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing." Id. art. 64.03(a)(2)(A) (Vernon Supp. 2004). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Ex Parte Guzmon, 730 S.W.2d 724, 733 (Tex.Crim.App. 1987). Here, there was uncontroverted evidence that the State did not have possession of any biological evidence that could have been subjected to DNA testing. Accordingly, the trial court did not err in denying appellant's motion for post-conviction DNA testing. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim. App. 2002) (stating that the trial court is never required to grant a motion for DNA testing absent a showing that a reasonable probability exists that exculpatory DNA testing would prove innocence). We overrule appellant's fourth issue.

Conclusion

We affirm the trial court's order denying appellant's post-conviction motion for DNA testing. We grant appellate counsel's motion to withdraw. See Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App. 1971); Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.-Houston [1st Dist.] 2000, no pet.).