Opinion
No. 14-05-00690-CR
Memorandum Opinion filed August 10, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th Judicial District Court, Harris County, Texas, Trial Court Cause No. 9420695. Affirmed.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
MEMORANDUM OPINION
Challenging the trial court's finding that his post-conviction DNA test results were unfavorable, appellant Eugene James Ellis asserts, in five issues, that the trial court violated his state and federal constitutional rights by ruling on the State's motion for a finding under Texas Code of Criminal Procedure articles 64.04 and 64.03(e) without requiring his presence at a hearing. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with aggravated sexual assault and pleaded "not guilty." His first trial resulted in a mistrial, but he was found guilty as charged in a second trial. He received a life sentence. On appeal, his conviction was affirmed. See Ellis v. State, No. 11-96-158-CR, 1998 WL 34193633 (Tex.App.CEastland, April 02, 1998, no pet.). Following the appeal, on October 25, 2001, appellant filed a pro se motion for post-conviction DNA testing of biological evidence recovered in connection with the prosecution of the sexual-assault case. On July 25, 2003, the State filed a notice acknowledging errors in the testing of the biological evidence. On April 1, 2004, appellant's court-appointed counsel filed another motion for post-conviction DNA testing under articles 64.01-64.05 of the Texas Code of Criminal Procedure. On September 30, 2004, the trial court ordered retesting of the materials. The retesting was completed, and, on May 17, 2005, the State filed a response attaching a lab analysis report finding that the biological materials tested were consistent with appellant's DNA. On May 17, 2004, the trial court entered a final order finding that the DNA analysis of the biological evidence yielded a result not favorable to appellant. Appellant now challenges the trial court's finding.II. ISSUES AND ANALYSIS
Appellant raises five issues on appeal:(1)-(4) The trial court committed reversible error in conducting a final hearing regarding the results of appellant's post-conviction DNA testing, without appellant being present, thereby violating appellant's federal and state constitutional rights, including his right to confront and cross-examine the State's witnesses against him.
(5) The trial court committed reversible error in considering the Texas Department of Public Safety's laboratory report against him because the document constituted inadmissible hearsay.As a threshold matter, we consider whether appellant preserved error on the issues asserted in this appeal. The State argues that appellant presents nothing for appellate review because he failed to make any of these arguments or objections in the trial court or in a motion for new trial. To preserve error, there must be a timely, specific objection. See TEX. R. APP. P. 33.1. Even constitutional error may be waived by failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990). A defendant waives his constitutional right to confront witnesses if he does not object at trial. Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991); Thacker v. State, 999 S.W.2d 56, 61 (Tex.App.CHouston [14th Dist.] 1999, pet. ref'd). In his first four issues, appellant argues in various ways that the trial court erred in conducting a final hearing regarding the results of appellant's post-conviction DNA testing in his absence, allegedly violating his federal and state constitutional rights. In his fifth issue, he contends that the trial court erred in considering the Texas Department of Public Safety's laboratory report against him because the document constituted inadmissible hearsay. The record does not affirmatively reflect whether the trial court conducted a formal hearing (as appellant speculates). Even if the trial court did conduct such a hearing, the record does not indicate whether the trial court denied appellant the opportunity to be present. It appears that the trial court entered its final order after receiving the State's response with the DNA results, without conducting a hearing. Regardless of whether a hearing was conducted, appellant did not raise any of his issues in the trial court by objection or motion before bringing this appeal. Likewise, in the trial court, appellant made no objections and voiced no complaints based on any alleged violations of his constitutional rights, particularly his right to confront any witnesses used against him. Because appellant failed to raise any of these issues by objection or motion in the trial court, he failed to preserve his complaints for our review. Accordingly, we overrule all of appellant's issues on appeal. We affirm the trial court's judgment.