No. 01-02-00941-CR.
Opinion Issued October 30, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.4.
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 262650.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
EVELYN V. KEYES, Justice.
Appellant, Paul Edward Archie, challenges the trial court's order denying his motion for post-conviction DNA testing. In his sole point of error, appellant argues that Texas Code of Criminal Procedure article 64.03(a)(2)(A), as applied to him, violates his Fourteenth Amendment right to due process of law. We conclude that appellant failed to preserve error, thus waiving his point of error. We affirm.
Background
Appellant was convicted in 1978 of aggravated rape and assault, and was sentenced to 25 years' confinement. In 1981, the Court of Criminal Appeals affirmed appellant's conviction. In 2002, appellant filed a motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure. The trial court denied the motion, finding that appellant had failed to comply with article 64.03. Appellant filed a proper notice of appeal challenging the trial court's denial of his DNA testing motion. Appellant claims that article 64.03(a)(2)(A), which requires the convicted person to establish a reasonable probability that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, is unconstitutional as applied to him. In particular, appellant contends that the burden of proof placed on him by article 64.03(a)(2)(A) denies him due process of law because the burden of the statute, as interpreted by the Court of Criminal Appeals in Kutzner v. State, is more onerous than the language of the statute itself. 75 S.W.3d 427 (Tex.Crim.App. 2002). Preservation of Error
As a threshold matter, we must first address the State's contention that appellant waived error. As a general rule, trial counsel must object or otherwise preserve error, even if the error is "incurable" or "constitutional." Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). Without proper preservation, even constitutional error may be waived. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000). To preserve for appellate review an attack on the constitutionality of a statute as applied to him, an appellant must have first raised the issue in the trial court. Tex.R.App.P. 33.1(a)(1); Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995). Here, appellant is challenging the constitutionality of article 64.03(a)(2)(A) as applied to him. Therefore, appellant was required to preserve error at trial. Appellant failed to meet this burden. The record fails to demonstrate that appellant raised the issue in the trial court. Accordingly, we conclude that he has waived the issue of whether the statute is unconstitutional as applied to him. To the extent appellant's point of error can be read to raise a facial validity challenge, we conclude it is inadequately briefed; appellant has failed to develop his argument or support it with appropriate authority. See Wood v. State, 18 S.W.3d 642, 650 (Tex.Crim.App. 2000). Conclusion
We affirm the judgment of the trial court.