Opinion
No. 09-04-511 CR
Submitted on November 30, 2005.
Opinion Delivered January 4, 2006. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 61228. Affirmed.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Appellant Clifford Cruz was indicted for murder in 1992. See Tex. Pen. Code Ann. § 19.02 (Vernon 2003). The jury found him guilty and sentenced him to confinement for life in the Texas Department of Criminal Justice. After his conviction, Cruz filed a request for DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005)). In his motion, Cruz requested that "foreign" DNA evidence at the crime scene, fingernail scrapings from the victim, and "[f]oreign D.N.A. material on the coat abandoned by the assailant" be forensically tested. The State filed a letter stating that no evidence associated with the case was in the possession of the district attorney's office, the Port Arthur Police Department, or the Jefferson County Regional Crime Lab. The letter further stated all forensic evidence associated with the case was destroyed in 1998, and the only items that might still be in existence would be in the possession of the clerk of the court. Attached to the letter were letters from the Port Arthur Police Department and the Jefferson County Regional Crime Lab verifying that those agencies had no evidence in their possession pertaining to the case. At the hearing on Cruz's motion, Cruz's counsel stated he had a conference with the court reporter, who had "diligently searched the exhibit room for any exhibits and . . . could find none." The trial court denied Cruz's motion. Counsel for Cruz has filed an Anders brief. He has also filed a motion to withdraw. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). Appellant was provided with a copy of the brief, the motion to withdraw, the clerk's record, and a motion for extension of time to file pro se brief. Counsel informed appellant of his right to file his own brief if he so desired. Appellant then filed a pro se brief in which he contends he received ineffective assistance of counsel and the trial court erred in denying his motion for post-conviction DNA testing. In his first issue, Cruz contends counsel was ineffective because he made no effort to act as an advocate, filed no motions, acted as a "friend of the Court/State," and failed to assist Cruz's appellate counsel. To prevail on a claim of ineffective assistance of counsel, Cruz must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002) (footnote omitted). Cruz must prove there was no plausible professional reason for specific acts or omissions of his counsel. Id. at 836. Furthermore, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). The entire hearing on Cruz's motion consists of four sentences: three spoken by defense counsel, one spoken by the judge, and none spoken by the state's attorney. In a hearing where the appellant is not present (as here), it might be the more prudent course of action to have a more fully developed record for the reviewing court. Cruz has failed to meet his burden under Strickland. The record reveals there is no evidence that may be subjected to DNA testing. Therefore, there is no showing that, but for counsel's conduct, the result would have been different. Appellant's first issue is overruled. In his second issue, Cruz argues the trial court did not have proper evidence upon which to decide to deny DNA testing because the requested exhibits could not be found. The record contains evidence that there are no exhibits to test. Cruz's argument that further explanations concerning the exhibits' absence are required is not supported by the record. Cruz's second issue is overruled. In his third issue, Cruz contends he is entitled to a new trial because the requested exhibits were destroyed before the time mandated by law. Article 38.43 of the Texas Code of Criminal Procedure provides, in pertinent part:
(b) This article applies to evidence that:
(1) was in the possession of the state during the prosecution of the case; and
(2) at the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not:
(A) establish the identity of the person committing the offense; or
(B) exclude a person from the group of persons who could have committed the offense.
(c) Except as provided by Subsection (d), material required to be preserved under this article must be preserved:
. . . .
(2) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment.
(d) The attorney representing the state, clerk, or other officer in possession of evidence described by Subsection (b) may destroy the evidence, but only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:
(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or
(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant:
(e) To the extent of any conflict, this article controls over Article 2.21.Tex. Code Crim. Proc. Ann. art. 38.43 (Vernon Supp. 2005). On this record, Cruz has not demonstrated that the requested exhibits still exist, nor has he demonstrated that the requested exhibits were prematurely or improperly destroyed. See Tex. Code Crim. Proc. Ann. arts. 38.43, 64.03 (a)(1)(A)(i) (Vernon Supp. 2005). Cruz's third issue is overruled. The judgment of the trial court is affirmed.
We note that article 38.43, which requires preservation of biological evidence under certain circumstances, was not enacted until 2001, three years after the exhibits in this case were destroyed. See Tex. Code Crim. Proc. Ann. art. 38.43 (Vernon Supp. 2005).