Wyatt v. State

Full title: RICKY DALE WYATT a/k/a RICKEY DALE WYATT, Appellant v. THE STATE OF TEXAS…

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 31, 2005

No. 05-04-01345-CR (Tex. App. Mar. 31, 2005)

Opinion

No. 05-04-01345-CR

Opinion Issued March 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court, No. 4, Dallas County, Texas, Trial Court Cause No. F81-01187-PK.

Affirmed.

Before Justices BRIDGES, O'NEILL, and MAZZANT.

MEMORANDUM OPINION

Opinion By Justice MAZZANT.

Ricky Dale Wyatt appeals the trial court's order denying appellant's motions for forensic DNA testing under chapter 64 of the Texas Code of Criminal Procedure. In five points of error, appellant contends the trial court erred by (a) determining appellant's motions for testing failed to meet the statutory requirements; (b) failing to require the State to deliver the biological evidence to the court or explain why the evidence could not be delivered; (c) finding the evidence does not exist without requiring the State to conduct a search sufficient to exhaust all possibility that the evidence might be misplaced; and (d) failing to require the State to prove that the evidence had not been destroyed in violation of article 38.39 of the code of criminal procedure. We affirm the trial court's order.

BACKGROUND

In 1981, appellant was convicted of aggravated rape committed in 1980, and he was sentenced to 99 years' imprisonment. In 2001, appellant filed a pro se motion for forensic DNA testing and requested appointment of counsel. The trial court subsequently appointed appellant counsel for the proceeding, and appellant's counsel filed a motion for forensic DNA testing in 2004. The trial court ordered the State "to deliver to the Court the evidence designated in the Defendant's motion, along with a description of the condition of the evidence, or explain in writing to the court why the evidence cannot be delivered to the Court." The State filed a response stating the evidence was no longer in existence. The State explained that in 1980, after the crime, the complainant was taken to Parkland Hospital, and biological evidence was collected. That evidence was then forwarded to the Southwestern Institute of Forensic Sciences (SWIFS), where it was analyzed. At trial, a SWIFS serologist testified that testing the seminal fluid in the biological evidence came from a non-secretor, tests of material taken from appellant showed he was a non-secretor, and that approximately twenty percent of the male African-American population is not-secretors. Review of the reporter's record from the 1981 trial¹ shows the biological evidence was not offered or admitted into evidence. Attached to the State's response to appellant's motion for testing are letters from SWIFS, stating it has no record of any biological evidence from appellant's case, and from Parkland Hospital, stating its records "do not go back that far" for sexual assault exams. The trial court signed an order denying appellant's motions for forensic DNA testing without a hearing. In the order, the trial court stated,

The Court finds that the motion fails to meet the requirements set forth in Article 64.03 of the Code of Criminal Procedure.

Specifically the Court finds that the evidence does not still exist. The Court may order Testing only if the evidence still exists pursuant to Article 64.03(a)(1)(A)(i) of the Code of Criminal Procedure.

It is therefore ordered that Defendant's motion for Post Conviction Forensic DNA Testing be denied without a hearing.

STANDARD OF REVIEW

We review a trial court's decision to deny a motion for DNA testing under the bifurcated standard enunciated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Under that standard, we afford almost total deference to a trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, and we review de novo issues of application of law to fact that do not involve determinations of credibility and demeanor. Id. Under that standard, we review with deference to the trial court's finding the issue of whether the claimed DNA evidence exists. Id.

SUFFICIENCY OF THE MOTIONS

In his first and second points of error, appellant contends the trial court erred in finding appellant's pro se motion for DNA testing and the motion filed by his attorney failed to meet the requirements set forth in chapter 64 of the code of criminal procedure. Appellant argues his motions met all the requirements under article 64.01 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05). However, the trial court did not state appellants' motions failed to meet article 64.01; it stated appellant's motion did not meet article 64.03 because the evidence does not still exist. Appellant also argues the trial court did not reach article 64.03 because no evidentiary hearing was held. Under chapter 64, there is no right to a hearing until after the evidence is tested. See id. art. 64.04; Rivera, 89 S.W.3d 58-59. Because the trial court concluded there was no evidence to test, appellant was not entitled to a hearing. Accordingly, the trial court's failure to hold a hearing does not mean the court could not conclude under article 64.03(a)(1)(A)(i) that the evidence does not still exist.

We overrule appellant's first and second points of error.

ORDER TO DELIVER THE EVIDENCE

In his third point of error, appellant contends, "The trial court erred in failing to require the State to deliver the evidence to the court, or explain in writing to the court why the State cannot deliver the evidence to the court." The record shows the trial court did impose such a requirement on the State: on April 14, 2004, the trial court signed an order requiring the Dallas County District Attorney "to deliver to the Court the evidence designated in the Defendant's motion, along with a description of the condition of the evidence, or explain in writing to the Court why the evidence cannot be delivered to the Court." Appellant also argues that the trial court "erred in not conducting a show cause hearing and requiring the State to present evidence in the case." Appellant asserts the court "could not adequately discover whether or not the evidence existed without requiring the State to present witnesses who researched the records of the investigating agencies to determine whether or not the evidence exists." Neither chapter 64 nor the case law interpreting it require the trial court to hold such a hearing. Furthermore, appellant never requested such a hearing, so any error is not preserved for appellate review. See Tex.R.App.P. 33.1(a).

We overrule appellant's third point of error.

SEARCH FOR THE EVIDENCE

In his fourth point of error, appellant contends the trial court erred in finding biological evidence does not still exist without requiring the State to conduct a search sufficient to exhaust all possibility that the material was merely misplaced. If the trial court finds the State has not used due diligence in searching for the material, the trial court has implied authority to order the State to conduct a further search for the material. In re State, 116 S.W.3d 376, 384 (Tex.App.-El Paso 2003, orig. proceeding). Appellant argues the court should have entered such an order because the State's response to the motion for testing does not show the State made a diligent search for the evidence. However, appellant never requested such an order, so any error from the failure to order the State to conduct such a search is not preserved for appellate review. See Tex.R.App.P. 33.1(a). Moreover, we must give deference to the trial court's finding that the evidence does not exist. Rivera, 89 S.W.3d at 59. We overrule appellant's fourth point of error.

ARTICLE 38.39

In his fifth point of error, appellant contends the trial court erred in failing to require the State to provide proof that the evidence had not been destroyed in violation of Article 38.39 of the code of criminal procedure. Article 38.39 requires the State to preserve certain types of biological evidence until the defendant is released on parole or mandatory supervision, completes his sentence, or dies. Tex. Code Crim. Proc. Ann. art. 38.39(b), (c) (Vernon Supp. 2004-05). If the State plans to destroy the evidence, it must notify the defendant or his last known attorney before doing so. Id. art. 38.39(d). This statute took effect in April 2001. Appellant asserts "[t]he State should be required to provide some documentation that if the evidence has been destroyed, it was done prior to the enactment of the statute, and under what circumstances it was destroyed." Appellant never requested that the court require the State to provide proof that the evidence had not been destroyed in violation of Article 38.39, so the error, if any, is not preserved for appellate review. Tex.R.App.P. 33.1(a). Moreover, even if the record showed DNA evidence was destroyed unlawfully, the record would necessarily show the evidence does not exist and thus cannot be tested. Chapter 64 does not provide a remedy to a defendant when DNA evidence has been unlawfully destroyed. Johnston v. State, 99 S.W.3d 698, 703 (Tex.App.-Texarkana 2003, pet. ref'd). Likewise, article 38.39 provides no remedy when the State destroys biological evidence in violation of the statute. Tex. Code Crim. Proc. Ann. art. 38.39 (Vernon Supp. 2004-05); Johnston, 99 S.W.3d at 702; Watson v. State, 96 S.W.3d 497, 500 (Tex.App.-Amarillo 2002, pet. ref'd). We overrule appellant's fifth point of error. We affirm the trial court's order denying appellant's motions for forensic DNA testing.