Opinion
No. 04-17-00370-CR
01-03-2018
Juan Guzman ZUNIGA Jr., Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 2006CR5239
Honorable Jefferson Moore, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Irene Rios, Justice AFFIRMED
Appellant Juan Guzman Zuniga, Jr. was convicted of the offense of sexual assault and moved for post-conviction DNA testing of physical evidence held by the State. In a single issue, Zuniga contends the trial court erred by denying his request for a court-appointed attorney to assist him in obtaining post-conviction DNA testing. We affirm.
BACKGROUND
On September 24, 2007, a jury found Zuniga guilty of the offense of sexual assault, and the trial court assessed punishment at thirty years' imprisonment. Zuniga appealed his conviction, and on September 10, 2008, this court issued an opinion affirming the judgment of the trial court. See Zuniga v. State, No. 04-07-00729-CR, 2008 WL 4163224 (Tex. App.—San Antonio Sept. 10, 2008, pet. stricken) (not designated for publication). On September 30, 2016, Zuniga filed a motion for post-conviction DNA testing and a motion for the appointment of counsel. The trial court denied Zuniga's request for counsel on March 14, 2017, and on April 17, 2017, denied Zuniga's motion for post-conviction DNA testing.
This appeal followed.
ANALYSIS
In his sole issue on appeal, Zuniga contends the trial court erred by denying his motion for court-appointed counsel.
Standard of Review and Applicable Law
Chapter 64 of the Code of Criminal Procedure governs a convicted person's request for post-conviction forensic DNA testing and contains multiple threshold requirements that must be met before an applicant is entitled to such testing. See, e.g., TEX. CODE CRIM. PROC. ANN. arts. 64.01-64.05. The convicted person bears the burden of satisfying all article 64.01 and 64.03 requirements. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
Generally, we review a trial court's decision on a motion related to DNA testing under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We afford almost total deference to the trial court's determination of issues of historical fact and issues of application of law to fact that turn on credibility and demeanor of witnesses. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We review de novo other issues of application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses. Id. Here, because the trial court did not conduct a live hearing, we review the trial court's denial of DNA testing de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005).
The purpose of post-conviction DNA testing is to provide a means through which a convicted person may establish his innocence by excluding himself as the perpetrator of the offense of which he was convicted. See Blacklock v. State, 235 S.W.3d 231, 232-33 (Tex. Crim. App. 2007); Birdwell v. State, 276 S.W.3d 642, 645-46 (Tex. App.-Waco 2008, pet. ref'd). A convicting court may order forensic DNA testing only if the statutory preconditions of Chapter 64 are met. See Holberg v. State, 425 S.W.3d 282, 284 (Tex. Crim. App. 2014); Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
If a convicted person intends to file a motion for post-conviction DNA testing, then the trial court shall provide court-appointed counsel to the application, but only if three requirements are met: (1) the applicant must tell the trial court that he wishes to submit an application for post-conviction DNA testing; (2) the trial court must find reasonable grounds for the application to be filed; and (3) the trial court must determine the applicant is indigent. TEX. CODE CRIM. PROC. ANN. art. 64.01(c).
Thus, entitlement to court-appointed counsel in this context is conditioned on the trial court finding, in relevant part, that reasonable grounds exist for filing the motion for post-conviction DNA testing. See Ex parte Gutierrez, 337 S.W.3d 883, 889 (Tex. Crim. App. 2011).
[W]hether "reasonable grounds" exist for testing necessarily turns on what is required for testing. Basic requirements are that biological evidence exists, that evidence is in a condition that it can be tested, that the identity of the perpetrator is or was an issue, and that this is the type of case in which exculpatory DNA results would make a difference.Id. at 891.
DISCUSSION
Zuniga argues he met all three requirements to receive court-appointed counsel. The State agrees Zuniga is indigent and informed the trial court he intended to submit an application for post-conviction DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c). However, the State contends Zuniga was not entitled to receive court-appointed counsel because he did not demonstrate identity was an issue or how any potentially exculpatory DNA evidence would have changed the verdict in this case. See id. We agree Zuniga was not entitled to receive court-appointed counsel.
"The bottom line in post-conviction DNA testing is this: Will this testing, if it shows that the biological material does not belong to the defendant, establish, by a preponderance of the evidence, that he did not commit the crime as either a principal or a party?" Gutierrez, 337 S.W.3d at 900. In this case, the answer is no. Zuniga has not shown "probable cause" by a preponderance of the evidence that he would not have been convicted if exculpatory DNA results had been obtained. Id. at 892 (holding that a convicted person must establish that a favorable DNA test result would "cast doubt upon the validity of the inmate's conviction").
Zuniga's motion to the trial court is difficult to understand, but he appears to contend in a conclusory manner that he would not have been convicted if exculpatory DNA tests were obtained. Zuniga appears to argue the State prevented the SANE nurse who actually gathered physical evidence from him from testifying at trial. Zuniga appears to further argue that had this nurse testified, she would have absolved him of the offense because she collected "genetic material" of an "unspecified substance" from his sexual organ and underclothes that did not belong to him or the complainant. Zuniga's reasoning in requesting post-conviction DNA testing appears to be that the presence of a third person's DNA would prove he did not sexually assault the complainant.
"A finding of reasonable grounds requires more than an inarticulate hunch or intuition to suggest that exculpatory results would have changed" the outcome at trial. Id. at 891. Even assuming the DNA test results were exculpatory, Zuniga did not specifically explain how the outcome of his trial would have varied or whether this is even the "type of case in which exculpatory DNA results would make a difference." See id. A DNA test result identifying a possible third party does not necessarily establish that a defendant would not have been convicted. See Rivera, 89 S.W.3d at 60 (observing that negative DNA test results, alone, do not always indicate innocence); Baggett v. State, 110 S.W.3d 704, 707 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd) (holding that DNA tests that exhibited an "inconclusive male pattern" do not independently create a reasonable probability of innocence); see also Gutierrez, 337 S.W.3d at 900 (noting that DNA tests that positively identified a third party did not automatically establish that the defendant did not commit the offense as either a principal or a party).
The complainant in the underlying case, C.M., testified at trial. C.M. testified that:
[o]n the evening C.M. accepted [Zuniga]'s offer to stay in his apartment, [Zuniga] gave her alcohol while she cried and recounted her problems with her father. C.M. testified that when she grew tired, [Zuniga] told her to sleep in his bed and that he would sleep on the chair. She said she awoke when she felt [Zuniga] pulling off her pants and underwear. C.M. testified she attempted to prevent him from removing her garments, but that he succeeded and then held her down by her wrists while he forced himself into her. After about three minutes of forcible penetration, C.M. was able to get up, put on her pants, and leave the apartment.Zuniga, 2008 WL 4163224 at *1. "[W]itnesses who interviewed [Zuniga] testified he offered contradictory statements regarding what occurred that night in his apartment." Id. at *2. Zuniga testified C.M. consented to having sex with him. Id. We defer greatly to the fact-finder's determination of witness credibility, and the jury chose to believe C.M. over Zuniga. See Jacobs v. State, 115 S.W.3d 108, 112 (Tex. App.—Texarkana 2003, pet ref'd). Zuniga has not demonstrated that any potentially exculpatory DNA evidence would have changed the verdict at trial. See Gutierrez, 337 S.W.3d at 900.
Because Zuniga failed to establish how any exculpatory DNA test results would have changed the probability of being convicted, we conclude there are no reasonable grounds to appoint an attorney. See id.
CONCLUSION
For the reasons above, we overrule Zuniga's issue on appeal and affirm the judgment of the trial court.
Irene Rios, Justice DO NOT PUBLISH