No. 01-02-00908-CR
Opinion issued July 17, 2003 Do not publish. Tex.R.App.P. 47.2(b)
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 630185
Panel consists of Justices HEDGES, NUCHIA, and KEYES.
MEMORANDUM OPINION
Clyde Edward Womack, appellant, was convicted on December 11, 1992, of aggravated sexual assault of a child. The court assessed his punishment at 35 years confinement. In September 2001, appellant filed his motion for preservation and forensic testing of DNA evidence, as allowed by the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2003). The convicting court found that the evidence relating to the offense had been destroyed and thus denied the DNA testing. Appellant appeals the convicting court's denial of his post-conviction motion for DNA testing of evidence. We affirm. Background
Appellant's affidavit states that there was evidence, gathered from the complainant and the scene of the crime, which would have contained the DNA of the actor of the alleged offense. The State's response included an affidavit from Margaret Turner of the Houston Police Department, which affidavit stated that a rape kit in a brown bag had been destroyed on October 7, 1997. The State also included an affidavit from Melchora Vasquez of the Harris County Clerk's Office, which affidavit stated that the only remaining evidence in the case was one fingerprint card and two pen packets. At the first hearing, the court requested that the State examine its file and that of the police department to determine if there was a court order authorizing the destruction of the rape kit. The State filed an amended response and included a disposition authorization that showed that the rape kit had been destroyed pursuant to city ordinance. The State also included an affidavit from James Bolding of the Houston Police Department Crime Lab, which affidavit stated that the Crime Lab had no evidence from the incident. At the second hearing, the court denied the motion because there was no evidence upon which to conduct a DNA test. Discussion
Post-Conviction DNA Hearing In his first two points of error, appellant contends that the post-conviction hearing violated his constitutional rights because he was not present. Though appellant may not have had the benefit of the reporter's record at the time that he drafted his brief, this Court, by order dated January 30, 2003, granted appellant leave to supplement his brief with the benefit of the record, which was filed late. The reporter's record clearly states that, appellant and his counsel were present during both hearings conducted by the trial court. We overrule appellant's first two points of error. Confrontation Clause In his third and fourth points of error, appellant contends that his federal and state constitutional rights were violated because he was denied the opportunity to confront and cross-examine the State's witnesses against him. This court held in Cravin v. State that an appellant does not have a constitutional right to cross-examine witnesses at a post-conviction hearing. Id., 95 S.W.3d 506, 510 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Unlike at a criminal trial, the appellant does not have a right to be physically present at a post-conviction proceeding and so does not have the right to confront and cross-examine witnesses. Id. We overrule appellant's third and fourth points of error. Hearsay Objection Though appellant offers no supporting argument, he does list a fifth point of error in his brief. Appellant contends that the trial court erred in admitting affidavits against him because they constituted inadmissible hearsay in violation of the Texas Rules of Evidence. This Court addressed the same issue in Cravin: "We have determined that no evidentiary hearing is required in considering whether DNA evidence exists and that the State's written explanations need not be accompanied by affidavits." Id., 95 S.W.3d at 511. We overrule appellant's fifth point of error. Conclusion
We affirm the convicting court's denial of appellant's post-conviction DNA motion. Sam Nuchia, Justice