No. 05-06-00570-CR.
Opinion issued February 12, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F86-84262-RN.
Before Chief Justice THOMAS and Justices MOSELEY and LAGARDE.
The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
SUE LAGARDE, Justice, Assigned.
This is an appeal from the trial court's denial of appellant Donald Ray Briscoe's motion for post-conviction forensic DNA analysis in trial court cause number F86-84262-N wherein appellant was convicted of aggravated sexual assault of a child under fourteen years of age. Concluding no reversible error has been shown, we affirm.
Background
Appellant was charged in cause number F86-84262-N with the first degree felony offense of aggravated sexual assault of a child under the age of fourteen years alleged to have been committed on March 1, 1985. On May 5, 1986, pursuant to a plea bargain, appellant pleaded guilty before the trial court to aggravated sexual assault as alleged in the indictment. The trial court found the evidence substantiated appellant's guilt, deferred further proceedings without entering an adjudication of guilt, and placed appellant on probation for ten years. On April 20, 1987, a hearing on the State's motion to proceed with adjudication of guilt was held. Appellant pleaded not true to the allegations in the State's motion. After evidence was presented and each side rested and closed, the trial court denied the State's motion and continued appellant on probation under amended terms and conditions. On June 5, 1987, another hearing was held on the State's motion to adjudicate. Again, appellant pleaded untrue. After hearing evidence, the trial court granted the State's motion, accepted appellant's plea of guilty previously entered on May 5, 1986, found appellant guilty on his plea, and assessed appellant's punishment at confinement in prison for life and a fine of $10,000. On June 12, 1987, a written judgment was entered. Appellant appealed his conviction. On appeal, appellant's appellate counsel filed an Anders brief. In an unpublished opinion, this court affirmed appellant's conviction, holding in part, "the appeals are wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal." Briscoe v. State, Nos. 05-87-00703/704/705-CR (Tex.App.-Dallas Feb. 18, 1988) (not designated for publication). Some fifteen years later, on October 11, 2003, a motion for post-conviction forensic DNA analysis was filed on appellant's behalf. The motion was signed by appellant's attorney but is supported by an affidavit personally signed by appellant on June 11, 2003, in which he declares under penalty of perjury that he is innocent of the charge for which he was convicted. On February 20, 2006, the State filed a written response to appellant's post-conviction motion. In its motion the State represented to the trial court it had contacted the Southwestern Institute of Forensic Sciences (SWIFS), the Dallas County District Clerk, and the Dallas Police Department (DPD) in an effort to locate any existing evidence related to this case. Accompanying the State's response was a written SWIFS Report, a District Clerk Letter, and a DPD Letter, each of which stated no evidence related to this case had been located. Appellant offered no evidence to the contrary. The record before us does not reflect appellant complained at any time to the trial court about its failure to require the State to contact the Children's Medical Center (CMC) mentioned in his post-conviction motion. On March 8, 2006, the trial court signed a written order denying appellant's motion. The order recites the trial judge considered the pleadings of both parties, the legal requirements set out in Chapter 64, and "the Court's own personal experience and knowledge," in concluding appellant was not entitled to relief under Chapter 64. The written order further recites the trial court "FINDS that evidence does not exist that is subject to DNA testing under Chapter 64. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2005). Thus, [appellant] is not entitled to testing." Appellant now appeals from the trial court's March 8, 2006 order. Appellant contends the trial court erred in determining no evidence exists in this case because the State was not exhaustive in its search due to its failure to contact the CMC. Appellant argues the trial court should have required the State to contact the CMC before ruling on his post-conviction motion. Appellant does not otherwise complain about the sufficiency of the basis of the trial court's ruling. The State responds that appellant's point of error should be overruled for two reasons: appellant waived any complaint by failing to timely object in the trial court, and further, even if the merits are reached, the trial court's ruling was proper under existing law. The State cites rule 33.1 of the Texas Rules of Appellate Procedure, Shannon v. State, 116 S.W.3d 52, 54-55 (Tex.Crim.App. 2003), and an unpublished opinion from this court. The State specifically notes appellant failed to object on the basis the State's search was not exhaustive even after the State's written response limited its investigative efforts to three enumerated sources, not including the CMC. Waiver
Texas rule of appellate procedure 33.1(a) applies in an appeal from a trial court's denial of a post-conviction petition for DNA testing. See Shannon v. State, 116 S.W.3d 52, 55 (Tex.Crim.App. 2003) (citing rule 33.1(a) in holding appellant forfeited the right to complain on appeal from the trial court's denial of a post-conviction motion for DNA); Tex. R. App. P. 33.1(a) (Vernon 2003). Here, as in Shannon, the record before us does not show appellant asked the trial court to require the State to inquire of the CMC about whether it had evidence related to this case. Consequently, appellant has forfeited the right to complain on appeal the trial court erred in failing to so direct the State. Appellant makes no further complaint about the sufficiency of the evidence considered by the trial court as a basis for its ruling. Moreover, appellant correctly recognizes that under the standard set out in Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002), we afford almost total deference to the trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, and we review de novo application-of-law-to-fact issues that do not involve determinations of credibility and demeanor as well as the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence. Appellant further recognizes that we must review deferentially the trial court's finding that "evidence does not exist that is subject to DNA testing" under Chapter 64 of the Texas Code of Criminal Procedure. Reviewing deferentially that finding of fact by the trial court, and considering the substantial support for that finding provided by the State, the date of the original conviction, appellant's plea of guilty, and that appellant offered no evidence to the contrary, we conclude the trial court could have reasonably concluded that no physical evidence existed for DNA testing. Appellant has failed to show by a preponderance of the evidence a reasonable probability that exculpatory DNA tests would change the outcome of his trial or prove his innocence. Consequently, appellant is not entitled to a DNA test under Chapter 64. We overrule appellant's sole point of error. We affirm.