Summary
rejecting claim where convicted person did not request testing of biological material
Summary of this case from Mayfield v. StateOpinion
No. 05-03-00918-CR
Opinion Filed July 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F94-01552-J. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and WHITTINGTON.
MEMORANDUM OPINION
Daniel Junius Allen appeals the trial court's order denying his motion for post-conviction forensic testing. In one issue, appellant argues the court erred in denying his motion because evidence existed and identity was an issue. We affirm the trial court's order. A jury convicted appellant of murder and assessed a life sentence. This Court affirmed appellant's conviction. See Allen v. State, No. 05-94-00922-CR, 1995 Tex. App. LEXIS 2654 (Tex. App.-Dallas Oct. 27, 1995, no pet.) (not designated for publication). Subsequently, appellant filed a motion for appointment of counsel to assist him in obtaining an order for forensic testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. Appellant then filed his motion to compel production of evidence for forensic testing. In this motion, appellant requested testing of a brown suit coat for "blowback" residue that appellant alleges would have existed on the suit coat had he fired a gun the night of the murder. The State filed a response. The trial court denied appellant's motion on several grounds, including appellant's failure to file a sworn affidavit. Under article 64.01 of the code of criminal procedure, a convicted person may request forensic DNA testing of evidence containing biological evidence that was in the State's possession during trial. Tex. Code Crim. Proc. Ann. art. 64.01(a), (b) (Vernon Supp. 2004); Dinkins v. State, 84 S.W.3d 639, 641-42 (Tex.Crim.App. 2002). The motion must be accompanied by an affidavit sworn to by the convicted person, containing statements of fact in support of the motion. Tex. Code Crim. Proc. Ann. art. 64.01(a); Dinkins, 84 S.W.3d at 642. In his sole issue, appellant argues the trial court erred by denying his motion "because evidence exists for testing and identity was an issue at trial." Appellant asserts he requested the testing under article 64.01 of the code of criminal procedure. However, appellant did not request testing of biological material. Chapter 64, therefore, does not apply to appellant's request. See Tex. Code Crim. Proc. Ann. art. 64.01(a) (providing for forensic DNA testing of "evidence containing biological material"). Even had appellant's motion properly been filed under chapter 64, appellant failed to file a sworn affidavit as required by article 64.01(a). See id. Accordingly, the trial court did not err in denying appellant's motion. To the extent appellant complains that the denial of his motion violated his federal and state constitutional rights to due process and equal protection, we note that no such objection was made in the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (recognizing that even constitutional errors can be waived by failing to preserve them in the trial court). Even if appellant had raised the issue below, he has failed to adequately brief the issue in this Court. See Tex.R.App.P. 38.1(h) (brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record). Appellant does not provide any legal analysis or cite us to any pertinent legal authority to show the testing of only biological evidence versus all scientific evidence violates appellant's rights to due process or equal protection. We resolve appellant's sole issue against him. We affirm the trial court's order.
The record indicates appellant first raised the issue of DNA testing in October 2001. On October 22, 2001, the trial court referenced appellant's motion in its order for the district attorney to deliver the designated evidence to the court. The record, however, does not contain that motion. The motion in the record is that which appellant dated March 25, 2002; it does not bear a date-filed stamp. The March 2002 motion is the one appellant references in his brief, and it is the motion to which the State filed its response in June 2002. The March 2002 motion is the only one before this Court; it is the one we consider in our review.
Article 64.01 was amended in 2003; the law in effect at that time is applicable. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, amended by Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, § 1, 2003 Tex. Gen. Laws 16, 16 (current version at Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004)). Neither section (a) nor section (b) of article 64.01, however, was affected by the amendment. See id.