No. 05-07-01507-CR
Opinion Filed April 21, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73362-S.
Before Chief Justice THOMAS and Justices BRIDGES and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
Michael Louis Brisco challenges the trial court's failure to hold a hearing on his motion for post-conviction DNA testing. In one point of error, appellant complains that the trial court violated his right to due process. We affirm the trial court's order.
BACKGROUND
On November 12, 2001, the trial court found appellant guilty of murder on his plea of guilty, and, in accordance with a plea bargain agreement, assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice. Appellant appealed his conviction and the Texarkana Court of Appeals dismissed his appeal for want of jurisdiction on June 25, 2002. THE EVIDENCE
On appeal, both the State and appellant glean their facts from the court's file, prosecution reports, offense reports, appellant's motion, and the State's response. This, together with the clerk's record and the court reporter's record of appellant's plea hearing, completes the evidence before this Court. In appellant's motion, he alleged that he was unaware of any DNA testing, but a "substantial likelihood that DNA testing of the biological evidence would show that [appellant was] not guilty of murder." Appellant also claimed that because identity was in issue, exculpatory results of DNA testing would have resulted in appellant not being prosecuted. In response, the State requested a time line for DNA testing from the Southwestern Institute of Forensic Sciences (SWIFS) and attached its letter response. SWIFS's letter recited, among other things, that short tandem repeat testing began in January 2000 and Mitochondrial DNA testing began in November 2001. Additionally, the State informed the trial court that SWIFS still had four blood samples gathered from the crime scene-around the table, bench, and bridge rail-as well as vaginal, anal, oral, and left ring-finger swabs from the deceased. The deceased, who wore a custom made necklace that spelled "Cookey," was last seen alive when she dropped her son at Valerie Washington's apartment to spend the night. The deceased arrived at Washington's apartment in an older, brown vehicle, but Washington did not see who was driving the vehicle. However, the deceased's son said appellant was in the vehicle. Police received an anonymous telephone call naming Claude Thomas Marshall as the murderer. When arrested, Marshall admitted that he drove the deceased to Washington's apartment in his brown Buick. Afterward, he, appellant, and the deceased went to Glendale Park where they smoked marijuana and "wac." Appellant and the deceased began arguing and appellant shot the deceased in the head. Marshall and appellant dragged the deceased to the creek and removed her necklace, which Marshall pawned the next day. DUE PROCESS
In appellant's sole point of error, he complains that the trial court, after granting his request for a hearing, resolved his motion for DNA testing without first holding the hearing it had granted him. He contends that the trial court's not having a hearing denied his right to due process of law under the United States Constitution's Fifth and Fourteenth Amendments and the Texas Constitution, Article 1, Section 19. Specifically, he argues that the trial court's denial of post-conviction testing without a hearing took away his right to be heard and to present controverting evidence. The State responds that appellant did not preserve this complaint because he never objected in the trial court to the failure to hold a hearing on the requested DNA testing. And it argues that the record fails to establish that a hearing was not held because a hearing "could have been conducted off the record." Additionally, the State contends that the trial court's order denying DNA testing does not "establish that no hearing was held." 1. Standard of Review and Applicable Law
Our code of criminal procedure provides that the convicting court may order DNA testing if the court finds identity was or is at issue, and the convicted person establishes by a preponderance of the evidence that he would not have been convicted if DNA testing would have produced exculpatory results. Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2008); Smith v. State, 165 S.W.3d 361, 364 (Tex.Crim.App. 2005). Article 64.03 also requires that appellant prove that had the DNA test been available at trial, he would not have been convicted. Smith, 165 S.W.3d at 364 (citing the legislative bill analysis). However, Chapter 64 of the code does not require the trial court to conduct an evidentiary hearing. Whitaker v, State, 160 S.W.3d 5, 8-9 (Tex.Crim.App. 2004). Rather, the trial court may rely on the motions and the State's written response. Mearis v. State, 120 S.W.3d 20, 23-24 (Tex.App.-San Antonio 2003, pet. ref'd) (citing Rivera v. State 89 S.W.3d 55, 58-59 (Tex.Crim.App. 2002)). An applicant for post-conviction DNA testing has no right to appear or examine witnesses at a hearing. Booker v. State, 155 S.W.3d 259, 266 (Tex.App.-Dallas 2004, no pet.); Cravin v. State, 95 S.W.3d 506, 510-11 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). When the trial court does not hold a hearing, we review de novo whether the trial court was required to grant appellant's motion. Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App. 2006); see also Smith, 165 S.W.3d at 363. 2. Application of Law to Facts
Appellant appeals the trial court's failure to hold a hearing, not whether he was entitled to DNA testing. Our code of criminal procedure does not require the trial court to hold a hearing, but it allows the trial court to rely on the motions and the State's written response. We affirm the trial court's order.