No. 05-08-00006-CR
Opinion Filed March 24, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-27144-JS.
Before Justices FITZGERALD, MURPHY, and MYERS.
Opinion By Justice MURPHY.
In this intoxication manslaughter case, Gregory Todd Sturgis appeals the trial court's order denying his chapter 64 request for post-conviction forensic DNA testing of a brake pedal pad and toe ring. Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2009). We affirm the trial court's order.
BACKGROUND
In 2004, a jury convicted appellant of intoxication manslaughter in the death of his girlfriend, Shelly Harris, and the trial court sentenced him to thirteen years in prison. The evidence at trial showed neither appellant nor Harris was in the driver's seat of appellant's truck when rescue workers arrived at the accident scene. Sturgis v. State, No. 05-04-01632-CR, 2006 WL 1624431, at *1 (Tex. App.-Dallas June 13, 2006, no pet.) (not designated for publication). Rescue workers found appellant slumped over in the driver's side back seat and Harris draped between the front and back seats with her thighs across the console and her feet in the front passenger seat. Id. Both appellant and Harris were intoxicated. Id. The parties presented competing reports and testimony from accident investigation and reconstruction experts, offering differing conclusions as to who was driving the truck at the time of the accident. Id. at *2-3. The parties also presented contrasting testimony concerning whether appellant was the only person who ever drove his truck. Id. at *3. On appeal from his conviction, appellant challenged the legal and factual sufficiency of the evidence. Id. at *4. We affirmed the conviction. Id. at *5. Thereafter, appellant filed a motion requesting DNA testing of the brake pedal pad that was admitted as an exhibit at trial. In his supporting affidavit, appellant claimed (1) the evidence was not previously subject to DNA testing; (2) the failure to test this evidence for DNA "was not due to any fault of mine"; and (3) the interests of justice required DNA testing of such exhibit. Appellant also maintained he was not driving the truck at the time of the accident. He asserted that because the evidence showed Harris was barefoot at the time of the accident, her DNA on the brake pedal pad "would tend to show that she was driving the truck on the night of the accident and the accident was caused by her intoxicated driving." He further alleged he "would not have been convicted if exculpatory results had been obtained through DNA testing." Pursuant to article 64.02 of the Texas Code of Criminal Procedure, the trial court notified the State of appellant's request for post-conviction DNA testing. The trial court's notice ordered the State to deliver the evidence sought to be tested or explain in writing why the evidence could not be delivered to the court. See Tex. Code Crim. Proc. Ann. art. 64.02. Prior to the State filing its response to the request for DNA testing, appellant filed a supplemental motion for DNA testing on a toe ring found under the brake pedal. As with his original motion for DNA testing, appellant averred generally in his supporting affidavit that the failure to test the toe ring previously was not his fault. He maintained that Harris's DNA on the toe ring would tend to show she was driving the truck on the night of the accident and appellant would not have been convicted if such exculpatory DNA results were available. According to the State, it never received notice of appellant's supplemental motion under article 64.02. In its response to appellant's original motion for DNA testing of the brake pedal pad, the State asked the trial court to deny the motion because appellant had failed to explain why the evidence was not subjected to DNA testing previously. The State also argued that DNA testing of the brake pedal pad would not exonerate appellant because, even assuming Harris's DNA was on the brake pedal pad, those results would not show who was driving the truck at the time of the accident. At the hearing on appellant's motion, the trial court took judicial notice of the contents of its file related to this case, including the reporter's record of appellant's trial. After hearing argument, the trial court orally denied appellant's motion for DNA testing of the brake pedal pad. In denying appellant's request, the trial court added: "I think you're trying to find real evidence. . . . And simply-simply the existence of the DNA, that would not lead to a different result in the Court's opinion. . . ." This appeal followed. At the time of appeal, the trial court had not signed a written order denying appellant's motion for DNA testing as to the brake pedal pad. In November 2008, we abated this appeal and ordered the trial court to review the record and prepare a written order. The trial court transmitted its order on May 11, 2009, making three findings that appellant (1) failed to show the brake pedal pad actually contains biological material as required by article 64.01(a); (2) failed to show that the evidence was not previously subjected to DNA testing for the reasons stated in article 64.01(b)(1)(A)-(B); and (3) did not establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing under article 64.03(a)(2)(A). ANALYSIS
Appellant contends in one issue that the trial court abused its discretion by denying his motion for DNA testing because, given the State's theory at trial that Harris never drove appellant's truck, he would have been found innocent if her DNA was on either the brake pedal pad or the toe ring. The State's initial response is that any complaint about DNA testing of the toe ring was waived by appellant's failure to preserve his complaint for appeal. We address that question first. Waiver
To preserve a complaint for our review, the record must show (1) a timely, specific request to the trial court and (2) that the trial court ruled on the request or refused to do so. Tex. R. App. P. 33.1(a)(1)-(2); Kennedy v. State, 264 S.W.3d 372, 380 (Tex. App.-Houston [1st Dist.] 2008, pet. ref'd). Here, nothing in the record indicates the trial court ever ruled on appellant's supplemental motion or that the trial court refused to rule and appellant objected to the refusal. Tex. R. App. P. 33.1(a)(2). The trial court's oral pronouncement and written order addressed only appellant's motion to test the brake pedal pad. Because he did not obtain a ruling on his supplemental motion to test the toe ring, we conclude appellant waived any complaint as to that request. See id. Thus, we limit our review to whether the trial court erred in denying appellant's motion for DNA testing of the brake pedal pad. Standard of Review
We review a trial court's decision on a motion for post-conviction DNA testing under a bifurcated standard. Esparza v. State, 282 S.W.3d 913, 921 (Tex. Crim. App. 2009). We defer to the trial court's determinations of historical fact and application of law-to-fact issues that turn on credibility and demeanor. Id.; Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We review de novo pure legal issues, such as whether the trial court was required to grant appellant's motion under chapter 64. Esparza, 282 S.W.3d at 921; Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). DNA Testing
Chapter 64 of the Texas 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 appellant is entitled to such testing. See, e.g., Tex. Code Crim. Proc. Ann. arts. 64.01 (requirements for convicted person's motion, including unavailability requirements), 64.03 (requirements to be entitled to DNA testing); Swearingen v. State, No. AP-76,073, 2010 WL 445694, at *3 (Tex. Crim. App. Feb. 10, 2010). Appellant bears the burden of satisfying all chapter 64 mandates. Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008). Appellant must first show the evidence sought to be tested contains biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a); Swearingen, 2010 WL 445694, at *3. Specifically, article 64.01(a) allows a convicted person to submit to the convicting court "a motion for forensic DNA testing of evidence containing biological material." Tex. Code Crim. Proc. Ann. art. 64.01(a). The motion must be accompanied by a sworn affidavit and contain "statements of fact in support of the motion." Id. According to the Texas Court of Criminal Appeals, "[a] literal reading of the statute unequivocally mandates that all evidence to be tested must first be proven to contain biological material." Swearingen, 2010 WL 445694, at *3. While chapter 64 does not outline a method or procedure for determining whether biological material exists on a piece of evidence, a "mere assertion" or "general claim" of the existence of biological material on a piece of evidence is not enough to satisfy appellant's burden. Id. (citing Routier, 273 S.W.3d at 256); see also Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002) (convicted person must do more than merely assert chapter 64's requirements have been met). If an appellant fails to provide facts supporting his motion, "we cannot say that the convicting court erroneously determined that appellant failed to show existence of evidence containing biological material that should be subjected to DNA testing." Dinkins, 84 S.W.3d at 642. Brake Pedal DNA
Here, the trial court found appellant failed to show that the brake pedal pad, which it noted was not "normally considered a source of DNA evidence," contained biological material suitable for DNA testing. We agree. Looking to appellant's motion, supporting affidavit, and memorandum in support, appellant makes no attempt to specify what biological material, if any, was collected from the brake pedal pad that could be tested or to show biological material currently exists for testing. The only guidance appellant provided as to the existence of biological material is his assertion that because Harris was barefoot at the time of the accident, "if" her DNA were found on the brake pedal pad, "this would tend to show that [she], not [appellant], was driving the truck at the time of the accident and thus exculpate [appellant]." This assertion, however, is not supported with any affirmative statement that the brake pedal pad actually contained biological material deposited from Harris's bare foot or otherwise. Nor does appellant provide any expert testimony or scientific data to support the conclusion that DNA would necessarily be deposited on a brake pedal pad in the course of driving with bare feet. See, e.g., Swearingen, 2010 WL 445694, at *4 (appellant presented no expert testimony or scientific data to support conclusion DNA would be deposited through touching or grasping). In short, the record is void of any concrete evidence that biological material exists on the brake pedal pad. See id. On appeal, appellant suggests the trial court's written finding that he failed to show the brake pedal pad contained biological material is "questionable" because the trial court considered his offer of proof at the hearing as "sufficient" and "well-taken." We do not read the trial court's acceptance of appellant's offer of proof, however, as finding appellant satisfied chapter 64's threshold requirements. Appellant's offer of proof dealt solely with article 64.01(b)'s unavailability requirements. Specifically, he proffered the summary of testimony to show "that the evidence was not tested was-was not due to any fault of the [appellant]." See Tex. Code Crim. Proc. Ann. art. 64.01(b). After the proffer, appellant then represented to the trial court that the "rest of the basis for [his] motion is evidenced from the records, the motion and the memo." He added, "[s]o if it's all right with the State, I'll go into my arguments." The trial court then stated: "Your Offer of Proof is taken by the Court as-as sufficient and is well-taken," letting appellant know he did what he had to do to make an offer of proof. Appellant provided nothing in his offer of proof establishing the brake pedal pad actually contained biological material. See id. art. 64.01(a). As to the statutory requirement that appellant show the existence of DNA evidence on the brake pedal pad, appellant argues no issue was raised in the hearing to suggest he did not meet his burden. He maintains the trial court assumed the brake pedal pad could be tested because the court's questions were confined to whether exculpatory DNA results would show appellant's innocence. The record does show the trial court focused on chapter 64's requirement that the DNA results be exculpatory. See id. art. 64.03(a)(2)(A). The record also shows the trial court considered the issue of whether the brake pedal pad contained DNA evidence. Presenting argument on why DNA test results would not be exculpatory, the State argued the results would not show "how that DNA came to be deposited at that location . . . it was a violent crash. . . . blood splatter could have occurred. . . ." When asked by the trial court whether any blood splatter was found on the brake pedal, the State responded, "[n]ot that I'm aware of, no" and stated "[w]hich is another issue, Your Honor." The State also maintained at the hearing "we don't know if there is biological material on the brake pedal." The record does not show the trial court ever concluded or assumed the brake pedal pad contained DNA to be tested. To the contrary, in addition to the court's questions concerning the presence of blood on the brake pedal pad, the trial court noted that appellant was "trying" to find real evidence. Additionally, we are aware of no authority that would allow the trial court "to assume" appellant had met his burden of showing the existence of evidence containing biological material. See id. art. 64.01(a). Appellant must meet the chapter 64 statutory prerequisites for post-conviction forensic DNA testing. See Swearingen, 2010 WL 445694, at *3. Because appellant did not support his motion with facts showing the existence of biological material on the brake pedal pad, we conclude he failed to meet his threshold burden. See Tex. Code Crim. Proc. Ann. art. 64.01(a). Having failed to meet that requirement, we need not address whether appellant satisfied the additional statutory requisites. CONCLUSION
We overrule appellant's sole issue and affirm the trial court's order denying appellant's motion for DNA testing.