Opinion
No. 06-12-00103-CR
09-24-2012
ERIC CARSON WYNN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 27805-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Eric Carson Wynn really wants DNA testing. This is his second such application appealed to this Court, and it urges essentially the same argument as the first.
In 2000, Wynn pled guilty to, and was convicted of, aggravated sexual assault, and the supporting evidence included Wynn's DNA recovered from the person of the victim. In 2011, Wynn sought, and was denied, DNA testing. On appeal, we affirmed that denial, with the following reasoning:
Wynn was sentenced to forty years' imprisonment in the Texas Department of Criminal Justice—Institutional Division.
Wynn's 2011 motions for the appointment of counsel and an expert in DNA testing in connection with his request for DNA testing were granted. After two hearings, the trial court denied Wynn's request for DNA testing. Wynn appealed, and we affirmed. The Texas Court of Criminal Appeals denied his petition for discretionary review.
Even should the Y-STR test have revealed the presence of more than one male donor, this finding would not exculpate Wynn, but would merely add another person to the mix. In Bell v. State, 90 S.W.3d 301 (Tex. Crim. App. 2002), the Texas Court of Criminal Appeals reviewed a claim in which the appellant sought to demonstrate the possibility of his innocence by proving that someone else's DNA was at the scene of the crime. The court determined that without more, the presence of another person's DNA at the crime scene would not constitute affirmative evidence of the appellant's innocence and that therefore, the denial of DNA testing did not violate appellant's due process rights. Id. at 306.Wynn v. State, No. 06-10-00226-CR, 2011 WL 5865710, at **4-5 (Tex. App.—Texarkana Nov. 23, 2011, pet. denied) (mem. op., not designated for publication).
The same reasoning applies here. The presence of more than one male donor would not constitute affirmative evidence of Wynn's innocence. Moreover, the recovery of additional DNA would not determine the identity of the person who committed the offense and therefore would not exculpate Wynn. See Prible v. State, 245 S.W.3d 466, 470 (Tex. Crim. App. 2008) (mere presence of another person's DNA at crime scene does not constitute affirmative evidence of defendant's innocence).
Wynn now appeals from the denial of his second request for DNA testing. This time, he seeks DNA testing of the child born to the victim in the aftermath of the assault. He argues that DNA testing would establish that he was not the child's father, therefore proving that he was innocent of the assault.
One week after the filing of Wynn's current motion, the trial court denied the motion, the appointment of counsel, and a bench warrant. Wynn complains on appeal that the court's determination was erroneous, noting that the State did not file a response to this motion and that no hearing was conducted. He argues that, because of these procedural shortfalls, reversible error has been shown. Wynn also argues that, because he has met all the requirements of Chapter 64, DNA testing should have been ordered.
The motion was resubmitted and ruled on again by the trial court shortly before the record was filed in this appeal, with an additional order denying the resubmitted motion signed June 28, 2012.
The Texas Court of Criminal Appeals, examining the language in Chapter 64, has stated that nothing in Article 64.03 requires a hearing to determine whether a petitioner is entitled to DNA testing. See Rivera v. State, 89 S.W.3d 55, 58-59 (Tex. Crim. App. 2002) (contrasting Article 64.03 with Article 64.04, which specifically requires a hearing); Thompson v. State, 123 S.W.3d 781, 784 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd). This is not a case directly controlled by that authority, as the contention involves the lack of a response by the State under Article 64.02.
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We disagree. There are several shortfalls in this reasoning. There is authority that, in this type of proceeding, if the petitioner has not requested a response by the State, he cannot later complain about its absence because the issue has not been preserved for review. Sepeda v. State, 301 S.W.3d 372, 374 (Tex. App.—Amarillo 2009, pet. ref'd); see Shannon v. State, 116, S.W.3d 52, 54-55 (Tex. Crim. App. 2003). Although Wynn's petition asks for a hearing, it does not ask for a response by the State, and he did not later complain of its absence until this appeal.
Further, we cannot agree with Wynn's premise that the child is "biological material . . . in possession of the state" within the meaning of the applicable statute. See TEX. CODE CRIM. PROC. ANN. art. 64.01 (West Supp. 2012). While Article 64.02 provides that a convicting court should require the State to either deliver the desired evidence, or explain why the State cannot deliver the evidence, under these facts we will not require a useless act. The State does not possess the child, who is not in some evidence locker under State control.
Further, as noted above, Wynn's current substantive argument has already been addressed by this Court—albeit in a slightly different context—in dealing with Wynn's first application. As we stated in our last opinion, Wynn never denied having committed the crime of aggravated sexual assault with which he had been charged; on the contrary, he confessed to the crime. DNA testing done at the time showed results consistent with his confession. The presence of other DNA would not exculpate Wynn of this crime.
Under these facts, even if we treat the lack of a response by the State as a procedural error, there is no showing of how Wynn could have been harmed under these facts by the lack of a response or a hearing. Simply put, he has tried this before, and lost.
We affirm.
Josh R. Morriss, III
Chief Justice
Do Not Publish