Memorandum Opinion filed February 15, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas. Trial Court Cause No. 517831.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
In a single issue, appellant appeals the trial court's denial of his motion for forensic DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.001 (Vernon Supp. Pamph. 2006). Appellant asserts that the trial court abused its discretion in denying his motion because, in the absence of live testimony, the court lacked sufficient evidence upon which to base its ruling. We affirm. After a jury trial, appellant was convicted of capital murder. On April 6, 1989, the trial court sentenced him to life in prison. Appellant's conviction was affirmed on direct appeal. See Johnson v. State, No. 06-89-00076-CR (Tex.App.-Texarkana 1990, pet. ref'd) (not designated for publication). On September 24, 2002, appellant filed a motion requesting DNA testing on all the physical evidence from his case pursuant to Chapter 64 of the Texas Code of Criminal Procedure. The record contains no ruling on appellant's first motion. He filed an amended motion on March 30, 2004. The State asserts it received no notice of the amended motion and therefore did not respond. The trial court granted the motion the same day it was filed. The State later filed a motion asking the court to deny DNA testing based on affidavits from the custodians of records for the Houston Police Department, the HPD Crime Laboratory, and the Harris County District Clerk's Office averring that each possessed no evidence related to appellant's case. Our record contains no response by appellant to the State's motion. The trial court then found, among other findings, that appellant failed to meet the requirement to show that biological evidence from the case still exists and is in a condition making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i) (Vernon Supp. Pamph. 2006). The court signed an order denying DNA testing on February 24, 2006. In reviewing a trial court's decision to deny DNA testing under article 64.03, we afford almost total deference to the trial court's determination of historical fact issues and the application of law to facts that turn on credibility or demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). Under this standard, the issue of whether the claimed DNA evidence exists is reviewed with deference to the trial court's findings. Id. First, we note that there is nothing in the record to demonstrate that appellant preserved error by objecting to the trial court's consideration of affidavits instead of live testimony. Thus, appellant has waived his only complaint. See TEX. R. APP. P. 33.1; Saldano v. State, 70 S.W.3d 873, 886 87 (Tex.Crim.App. 2002) (stating that even constitutional complaints may be waived by failure to timely assert them in the trial court). Secondly, article 64.03 does not require a hearing concerning the trial court's determination of whether a defendant is entitled to a DNA testing. Rivera, 89 S.W.3d at 58-59. Affidavit testimony that no biological evidence from the case is maintained or possessed, absent contrary evidence, is sufficient to support the trial court's denial of a motion for DNA testing. See Shannon v. State, 116 S.W.3d 52, 55 (Tex.Crim.App. 2003). If the evidence no longer exists, then the trial court cannot order DNA testing. See Lewis v. State, 191 S.W.3d 225, 228 29 (Tex.App.-San Antonio 2005, pet. ref'd). We conclude that appellant's sole issue is without merit. Accordingly, the judgment of the trial court is affirmed.
Although not raised as an issue, appellant asserts generally in his brief that the state has deprived him of an opportunity to challenge his conviction by failing to preserve the evidence in his case. The code of criminal procedure does not authorize an appeal to a court of appeals on the ground that the State improperly destroyed DNA evidence. See Chavez v. State, 132 S.W.3d 509, 510 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (holding that a complaint that the State improperly destroyed DNA evidence is a request for habeas relief over which a court of appeals has no jurisdiction).