AFFIRM; Opinion Filed March 13, 2012.
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-50575-P
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant Abram Martinez appeals the trial court's order denying his motion for post-conviction DNA testing. We affirm the trial court's order. Background
In 2005, appellant pleaded guilty to aggravated sexual assault of a child younger than 14 years of age. During the punishment phase of appellant's plea hearing, the 13-year-old complainant testified that appellant was her father's best friend. One day when the complainant was 11 years old, appellant and his niece Mary came to the complainant's house, threatened her, and forced her to have vaginal and anal sex with appellant. When he was finished, appellant gave Mary heroin and the complainant money. The complainant testified that appellant sexually assaulted her four or five more times, and Mary also forced the complainant to have sex with four to six other men so that Mary could get money for heroin. At some point the complainant became pregnant but the baby was not appellant's. Appellant also testified at the hearing. He admitted having sex with the complainant twice when he was 52 or 53 years old, but he said that it was consensual and that he thought she was between 17 and 19 years old. At the conclusion of the hearing, the trial court found appellant guilty and sentenced him to 45 years in prison. This Court dismissed appellant's appeal for want of jurisdiction due to an untimely notice of appeal. See Martinez v. State, No. 05-05-01006-CR, 2005 WL 1995103 (Tex. App.-Dallas Aug. 19, 2005, no pet.) (mem. op., not designated for publication) (per curiam).
In 2009, appellant filed a pro se Motion to Petition for DNA Testing and supporting affidavit, in which he explained that he was ordered to give a DNA sample at a laboratory and, [t]herefore . . . [he] believes the State is in possession of biological material accumulated in a rape exam kit. In response the trial court signed an order appointing counsel for appellant. Through his appointed counsel, appellant filed another motion for post-conviction DNA testing along with a supporting affidavit. In his motion and supporting affidavit appellant stated that, [a]ccording to the court file, a DNA test was ordered on June 6, 2005. After contacting the Assistant District Attorney who handled this case and looking through the DA's file, no evidence can be ascertained about any DNA test. Appellant also stated that to the best of his knowledge, there was evidence that consisted of biological material, including but not limited to a rape kit, that was not subjected to DNA testing through no fault of his own. He argued that identity was and is an issue in this case, [m]ore advanced testing is available today than 2003 that could render accurate results, and there is a reasonable probability that [appellant] would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. In response, the trial court signed an order pursuant to article 64.02 of the Texas Code of Criminal Procedure directing the district attorney's office to deliver to the Court the evidence designated in [appellant'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.
Pursuant to the court's order, the State filed a response to appellant's motion in which it noted, and attached documents demonstrating, that the only evidence available for testing was the DNA evidence collected and used to determine that appellant was not the father of the complainant's baby. The State also noted that [t]here is no indication in the State's file that any 'rape kit' evidence was collected from the victim, which is not surprising given the fact that this case involved a delayed outcry. As a result, the State argued that appellant's motion should be denied because appellant did not meet his burden to demonstrate that subjecting the evidence to further testing using newer techniques would yield more accurate or probative results.
The trial court denied appellant's motion, finding that the biological evidence in this case has already been subjected to DNA testing, and [appellant] has failed to show that it can be subjected to more testing with newer techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test, as required by Texas Code of Criminal Procedure article 64.01(b)(2). Appellant timely appealed from the trial court's order denying his motion for post-conviction DNA testing. Analysis
In his first issue, appellant argues that the trial court failed to comply with code of criminal procedure article 64.02 because it did not require the State to describe the current condition of the evidence and deliver the evidence to the court, nor did it require the State to explain why it could not do so. Appellant argues that the trial court had a mandatory duty to [e]nsure compliance by the State before issuing the court's ruling. Appellant argues that he was harmed because the State's failure to comply with the statute effectively prevents the trial court from making an affirmative finding under Article 64.03(a)(1)(A). In his second issue, appellant argues that the trial court erred by fail[ing] to address the existence of the 'rape kit' in its order denying appellant's motion for post-conviction DNA testing.
At the outset we note that appellant did not raise his complaints on appeal in the trial court either before or after the trial court denied appellant's motion. See Shannon v. State, 116 S.W.3d 52, 54-55 (Tex. Crim. App. 2003) (rule of appellate procedure 33.1 applies to an appeal from a trial court's denial of a motion for post-conviction DNA testing); see also McGary v. State, No. 06-09- 00186-CR, 2010 WL 2784434, at *1 (Tex. App.-Texarkana July 15, 2010, no pet.) (mem. op., not designated for publication) (appellant's complaint regarding failure to comply with article 64.02(a)(2) was waived since the complaint was not raised with the trial court). Nevertheless, even if appellant had raised his complaints in the trial court we would resolve this appeal against appellant.
When, as in this case, the trial court denies a motion for post-conviction DNA testing without conducting a hearing, we review the ruling de novo. Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005). A convicted person who moves for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure bears the burden of satisfying chapter 64's requirements. See Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006); see also Swearingen v. State, 303 S.W.3d 728, 731 (Tex. Crim. App. 2010) (chapter 64 requires multiple threshold criteria to be met before a convicted person is entitled to DNA testing). As a threshold issue, we consider whether appellant met his burden to demonstrate that the items available for post- conviction DNA testing would qualify for testing. See Routier v. State, 273 S.W.3d 241, 245 (Tex. Crim. App. 2008). With respect to the DNA evidence identified by the State, under article 64.01(b)(2), evidence that was previously subjected to DNA testing qualifies to be tested again only if it 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. Tex. Code Crim. Proc. Ann. art. 64.01(b)(2) (West Supp. 2011). In this case, appellant's affidavit did not contain any statements of fact to support his general assertion that [m]ore advanced testing is available today than 2003 that could render accurate results, nor did it contain any statements of fact to demonstrate that newer testing would be more probative. See Routier, 273 S.W.3d at 250 (noting defendant must show that newer testing would be more accurate and more probative); see also Tex. Code Crim. Proc. Ann. art. 64.01(a-1) (motion for post-conviction DNA testing must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion). As a result, appellant did not meet his burden to demonstrate that the DNA evidence identified by the State qualified to be retested under article 64.01(b)(2). See, e.g., Routier, 273 S.W.3d at 250 (defendant not entitled to have blood stains from socks retested because she failed to establish that new testing would be more probative than results of previous testing); Zinsou v. State, No. 02-04- 00010-CR, 2004 WL 1636255, at *2 (Tex. App.-Fort Worth July 22, 2004, pet. ref'd) (mem. op., not designated for publication) (per curiam) (concluding trial court did not err by denying defendant's motion for additional DNA testing because defendant failed to provide supporting facts to demonstrate that the evidence can be subjected to testing with newer techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous tests).
With respect to appellant's allegation that there was a rape kit that was not previously tested, we note that appellant did not cite any applicable authority to support his argument that the trial court erred by not addressing the rape kit in its order denying appellant's motion for post- conviction DNA testing. See Tex. R. App. P. 38.1(i). We also note that under article 64.02(b), the trial court was entitled to proceed under article 64.03 after the response period expired, regardless of whether the State filed a response. Tex. Code Crim. Proc. Ann. art. 64.02(b). In this case, the State responded and essentially explained to the trial court that it could not deliver evidence of a rape kit to the court because there is no evidence in the State's records that a rape kit was collected from the complainant. As a result, the trial court could not require DNA testing of any claimed kit. Id. art. 64.03(a)(1)(A)(i). Moreover, even if there had been a rape kit that was not previously tested, in order for the evidence to qualify for testing, the court had to find that identity was or is an issue. Id. art. 64.03(a)(1)(B). Appellant was also required to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. Id. art. 64.03(a)(2)(A). Appellant's affidavit, however, did not contain any statements of fact to support his assertion that identity was or is an issue. Appellant's affidavit also did not contain any statements of fact to support his assertion that it is a reasonable probability that [appellant] would not have been prosecuted or convicted if exculpatory results were obtained through DNA testing. Absent any factual allegations that, if true, would support the finding required by article 64.03(a)(1)(B) and the showing required by article 64.03(a)(2)(A), we cannot conclude that the trial court erred when it denied appellant's motion. See, e.g., In re McBride, 82 S.W.3d 395, 397 (Tex. App.-Austin 2002, no pet.). Conclusion
We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.
Do Not Publish
Tex. R. App. P. 47
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ABRAM MARTINEZ, Appellant
THE STATE OF TEXAS, Appellee
Appeal from the 203rd Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F04- 50575-P).
Opinion delivered by Justice Lang-Miers, Justices FitzGerald and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 13, 2012.