Opinion
NO. 02-17-00003-CR
01-11-2018
CHARLES RAY DIAZ APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1350578D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. INTRODUCTION
Appellant Charles Ray Diaz, pro se, appeals from the trial court's denial of his motion for forensic DNA testing. We will dismiss this appeal in part for want of jurisdiction, and we will overrule the remaining part of the two points that Diaz brings on appeal and affirm the trial court's order.
II. BACKGROUND
On November 23, 2013, Diaz and his cousin, Leonard Salmeron, were at Roy's Sports Bar and Grill (Roy's) in Grand Prairie, Texas. See Diaz v. State, No. 02-15-00020-CR, 2016 WL 4045221, at *1 (Tex. App.—Fort Worth July 28, 2016, no pet.) (mem. op., not designated for publication). Salmeron had driven Diaz to Roy's, and the two remained there until last call, after which Salmeron left to get his truck and wait for Diaz. Id. Shortly thereafter, Diaz came out of Roy's, walked to the passenger side of Salmeron's vehicle, and opened the passenger door. Id. After stepping out of his truck to talk to some girls he recognized from Roy's, Salmeron heard gunshots. Id. Salmeron turned to see what was happening and saw Diaz firing a gun at Trinity Smith, who was head of security at Roy's. Diaz shot Smith multiple times, but Smith survived.
A grand jury indicted Diaz on a charge of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011). The indictment contained a habitual-offender paragraph alleging that Diaz had previous convictions for aggravated assault with a deadly weapon and deadly conduct. A jury found Diaz guilty of the offense charged, and Diaz elected to have the court assess his punishment. Diaz pleaded true to the habitual-offender paragraph, and the trial court sentenced him to forty-five years' confinement.
After his conviction, Diaz directly appealed to this court, contending that the trial court violated his confrontation rights under both the United States and Texas constitutions when it granted two motions in limine requiring him to approach the bench before questioning a State witness about the witness's prior deferred adjudications. See id. Because Diaz had not preserved this issue for our review, we overruled his complaint as forfeited and affirmed the trial court's judgment. Id. at *2.
On September 1, 2016, Diaz filed a motion for post-conviction forensic DNA testing in the convicting trial court. The trial court denied Diaz's motion, and this appeal followed.
III. DISCUSSION
In two points that contain a multitude of complaints, Diaz argues that the trial court erred by allowing the State to introduce what he claims was "false" evidence of his guilt in the underlying trial; that the evidence is insufficient to support his conviction; that he received ineffective assistance of counsel when his defense attorney recommended that he not testify on his own behalf; that a video exhibit introduced by the State at trial did not positively identify him as the assailant; that the State's witnesses had generally been discredited for bias; and that he believes "that . . . testing of DNA and laten[t]-prints from clothing and the [firearm used in the assault] will prove his innocence." The State argues that Diaz's complaints regarding the validity of his underlying conviction are "outside the scope of a DNA testing appeal." We agree with the State that the majority of Diaz's complaints fall outside the purview of chapter 64 of the code of criminal procedure's DNA-testing authorization and that we do not have jurisdiction to address these complaints. Furthermore, to the extent that Diaz's complaints fall within the purview of chapter 64, we conclude that the trial court did not err by denying his motion.
A. Jurisdiction to Address the Majority of Diaz's Complaints
A threshold issue in any case is whether this court has jurisdiction to resolve the pending controversy. State v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds by State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002); Ex parte Armstrong, 110 Tex. Crim. 362, 366, 8 S.W.2d 674, 676 (1928). Likewise, our jurisdiction is fundamental and must legally be invoked. Roberts, 940 S.W.2d at 657; Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964) (op. on reh'g). If not legally invoked, we have no power to dispose of the purported appeal in any manner other than to dismiss it for want of jurisdiction. Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996).
Chapter 64 of the code of criminal procedure authorizes forensic DNA testing in cases in which the applicant meets the requirements enumerated in the statute. Tex. Code Crim. Proc. Ann. art. 64.03 (West Supp. 2017). The statute also confers jurisdiction on this court to review a trial court's order regarding post-conviction DNA testing in any case in which the death penalty is not imposed. Id. art. 64.05 (West 2006); see Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.—Corpus Christi 2003, no pet.). But chapter 64 does not confer jurisdiction upon this court to entertain collateral attacks on the trial court's judgment or to review, under the guise of a DNA-testing appeal, anything beyond the scope of chapter 64. Reger v. State, 222 S.W.3d 510, 513-14 (Tex. App.—Fort Worth 2007, pet. ref'd), cert. denied, 552 U.S. 1117 (2008).
Here, except for his isolated complaint that evidence should be tested for DNA, all of Diaz's other complaints fall outside the purview of chapter 64, and thus this court has no jurisdiction to address these contentions. See Lopez, 114 S.W.3d at 714-15 (reasoning that appellate courts lack jurisdiction to consider sufficiency claims, non-disclosure of exculpatory evidence claims, or ineffective assistance claims in a chapter 64 DNA-testing appeal). Therefore, we dismiss all of Diaz's claims except for his contention regarding DNA testing for want of jurisdiction.
B. The Trial Court's Denial of Diaz's Motion to Test for DNA
In reviewing a trial court's decision on a motion for DNA testing, we employ a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App.), cert. denied, 543 U.S. 864 (2004). 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 of witnesses. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). But we review de novo any application-of-law-to-fact questions that do not turn on the credibility and demeanor of witnesses. Id.
A trial court must order DNA testing only if the statutory requirements of chapter 64 are met, that is, only if (1) the evidence still exists and identity was or is an issue in the case; and (2) the convicted person establishes by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing. Tex. Code Crim. Proc. Ann. art. 64.03; Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002). If the evidence no longer exists or if identity was not or is not still an issue in the case, then the trial court cannot order DNA testing. See Lewis v. State, 191 S.W.3d 225, 228-29 (Tex. App.—San Antonio 2005, pet. ref'd).
Regarding Diaz's contention that he believes he is entitled to DNA testing of clothing admitted at trial and of the firearm that the State established Diaz had used during the assault, Diaz's complaint is fatally flawed because Diaz does not raise an issue as to the identity of who he claims would have been the assailant other than himself, nor has he even argued that DNA testing of the requested items would prove that he would not have been convicted except for exculpatory results that could be obtained through DNA testing of these items. See Reger, 222 S.W.3d at 514 ("[Reger's] contention fails to raise an issue as to the identity of the perpetrator of the alleged offense, which is required under the plain meaning of [chapter 64]."); see also Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B). Thus, the trial court did not err by denying Diaz's motion. Therefore, we overrule the remaining portion of Diaz's two points.
IV. CONCLUSION
Having overruled the surviving portions of Diaz's two points, we affirm the trial court's order denying his motion for post-conviction DNA testing. Additionally, we dismiss the remainder of Diaz's appeal for want of jurisdiction.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: MEIER, GABRIEL, and PITTMAN, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: January 11, 2018