Opinion
Nos. 05-03-01146-CR, 05-03-01162-CR
Opinion Filed July 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F93-61603-N F93-61604-N. Affirm.
Before Justices WRIGHT, O'NEILL, and FRANCIS.
MEMORANDUM OPINION
Appellant appeals the trial court's orders denying his motions for post-conviction DNA testing. In 1996, appellant was convicted in two cases for sexual assault of a child. Appellant filed post-conviction motions for DNA testing in each case. The trial court denied the motions. In the first issue, appellant contends the trial court erred in denying his motions for DNA testing without first conducting an evidentiary hearing. However, the court of criminal appeals has held that a trial court is not required to conduct a hearing on a motion for DNA testing. Whitaker v. State, No. 74,612, 2004 WL 63981 (Tex.Crim.App. Jan. 14, 2004). Furthermore, the trial court properly denied the motions because they did not meet the requirements of article 64.01 of the code of criminal procedure. Under article 64.01, a convicted person may file a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004). A motion under article 64.01 must be accompanied by an affidavit, sworn to by the convicted person, containing facts in support of the motion. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004). If evidence was not previously subjected to DNA testing, the convicted person must demonstrate in his motion that (1) DNA testing was not available, (2) DNA testing was available, but not technologically capable of providing probative results, or (3) the evidence was not previously subjected to DNA testing through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing. Tex. Code Crim. Proc. Ann. art. 64.01(b) (Vernon Supp. 2004); Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002). In his motions for DNA testing, appellant merely set out in a conclusory fashion that he was entitled to DNA testing under the statutory requisites. Appellant's motions, however, wholly failed to explain why DNA testing was not previously performed on any evidence the State possessed. Appellant's motions did not meet the requirements of article 64.01. Dinkins, 84 S.W.3d at 642; Warren v. State, 126 S.W.3d 336, 338 (Tex.App.-Dallas 2004, no pet.). Therefore, the trial court did not err in denying the motions. Dinkins, 84 S.W.3d at 642; Warren, at 126 S.W.3d at 338. We resolve the first issue against appellant. In his second issue, appellant contends the trial court erred in not allowing him to be present during the hearing on his motions for DNA testing. However, a convicted person has no right to be present at a hearing on a motion for DNA testing. Booker v. State, 05-03-00708-CR, 2004 WL 334867 (Tex.App.-Dallas Feb. 24, 2004, no pet.); Cravin v. State, 95 S.W.3d 506, 510 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd); see also ex parte Mines, 26 S.W.3d 910, 914-15 (Tex.Crim.App. 2000) (convicted person has no right to be present at post-conviction habeas proceeding). We resolve the second issue against appellant. We affirm the trial court's orders.