Opinion
Nos. 05-07-01414-CR, 05-07-01415-CR
Opinion issued August 6, 2008. DO NOT PUBLISH.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F93-61603-N F93-61604-N.
Before Justices Morris, Whittington, and O'Neill.
OPINION
In these appeals, John Harry Cloud challenges the trial court's denial of his second motion for post-conviction DNA testing. He complains in three issues that the trial court erred in failing to hold a hearing on his decision to proceed without an attorney in the cases, in failing to order post-conviction DNA testing, and in "not granting motions to forstall [sic] its ruling until the material not filed by Christina O'Neil had been replaced." We conclude appellant's issues are without merit and affirm the trial court's order in both causes. Evidence at appellant's original trial showed that two girls who were acquainted with appellant and his daughter claimed appellant had sexually assaulted them. They specifically alleged that appellant had inserted his finger into their vaginas one night when they were spending the night at appellant's home. DNA evidence collected in the case consisted of a semen stain on one of the girls' underwear that did not belong to appellant and hair from one of the girls' underwear, which was apparently not tested. Appellant's motion for post-conviction DNA testing in these cases requested that the hair be tested. In his first issue, appellant complains the trial court erred in not admonishing him before accepting his waiver of the right to counsel under Texas Code of Criminal Procedure article 1.051(g) (Vernon Supp. 2007). Article 1.051 pertains to defendants in adversarial judicial proceedings. See id. 1.051(a). At the time he filed his motion for post-conviction DNA testing, appellant was not a criminal defendant in the cases. Nor do the statutes providing for post-conviction DNA testing require compliance with article 1.051 before a trial court may permit a convicted person to proceed without a lawyer. See Tex. Code Crim. Proc. Ann. art. 64.01-64.05 (Vernon 2006 Supp. 2007). Appellant does not complain he was denied his right to a court-appointed attorney under article 64.01. See art. 64.01(c) (Vernon Supp. 2007). Under article 64.05, appellant's right of appeal is limited to those matters contained in the chapter authorizing post-conviction DNA testing. See id. art. 64.05 (Vernon 2006). Accordingly, we have no jurisdiction to address his first issue. Appellant next complains the trial court erred in refusing to order DNA testing of the hair. We disagree. A convicting court may order post-conviction DNA testing only if the court finds, among other things, that identity was or is an issue in the case. See id. art. 64.03(a)(1)(B) (Vernon Supp. 2007). Here, both of the girl complainants knew appellant and had been spending the night at his home when the alleged offenses occurred. Moreover, even if the hair from one of the girls' underwear was found not to belong to appellant, it would not prove appellant's innocence in either case. See Blacklock v. State, 235 S.W.3d 231, 233 (Tex.Crim.App. 2007). Thus, identity was not and is not an issue in appellant's cases. The trial court did not err in denying appellant's motion for post-conviction DNA testing. We resolve appellant's second issue against him. In his third issue, appellant complains the trial court erred in "not granting motions to forstall [sic] its ruling until the materials not filed by Christina O'Neil had been replaced." We cannot determine from the appellate records what materials were allegedly not replaced in the cases. Although the clerk's records in the cases contain several complaints by appellant about a mailed package of materials, submitted to the court by appellant as exhibits, that was allegedly lost, appellant never reveals what the package contained. Appellant's motion for post-conviction DNA testing requested testing only of the hair found in the underwear. We have already determined that, because identity was not and is not an issue in his case, the trial court did not err in denying appellant's motion. Any materials submitted by appellant to the court would not entitle appellant to post-conviction DNA testing. We therefore resolve appellant's third issue against him. We affirm the trial court's order in both causes denying appellant's second motion for post-conviction DNA testing.
We note that the State's brief in this case does not reply to appellant's issues. Rather, it confines its arguments to the assertion that appellant "argues that the trial court erred in denying his motion for post-conviction DNA testing because identity was or is an issue in this case." We remind the State that its future briefs filed as an appellee should "respond to the appellant's issues." See Tex. R. App. P. 38.2(a) (2).
The trial court excluded this evidence at trial as irrelevant to the charged offenses.