Opinion
No. 05-02-01568-CR
Opinion issued July 28, 2003 Do Not Publish
On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause No. F97-22264-KU. AFFIRMED
Before Justices WRIGHT, BRIDGES, and RICHTER.
OPINION
Francis Osatohannwen Ewere appeals the trial court's order denying his motion for post-conviction forensic DNA testing. In three points of error, appellant argues the trial court erred in (1) failing to enter findings of fact and conclusions of law and (2) denying his motion for forensic DNA testing, and he received ineffective assistance of counsel. We affirm the trial court's order. In 1998, a jury convicted appellant of sexual assault of a child and sentenced him to eighteen years' confinement. In January 2000, this Court affirmed appellant's conviction. See Ewere v. State, No. 05-98-00409-CR, (Tex.App.-Dallas January 13, 2000, pet. ref'd) (not designated for publication). In July 2001, appellant filed motions for post-conviction forensic DNA testing. The trial court denied appellant's motions, and this appeal followed. In his first issue, appellant argues the trial court erred in failing to enter findings of fact and conclusions of law. Specifically, appellant contends that, because articles 64.03 and 64.05 of the code of criminal procedure refer to whether "the convicting court finds in the affirmative" the issues required to permit DNA testing and provide for an appeal of "a finding under Article 64.03," such a finding must be written. See Tex. Code Crim. Proc. Ann. arts. 64.03, 64.05 (Vernon Supp. 2003). On the contrary, the court of criminal appeals has noted that the legislative history of chapter 64 of the code of criminal procedure shows that the Legislature intended to authorize appellate review of all of a convicting court's article 64.03 determinations. Kutzner v. State, 75 S.W.3d 427, 434 (Tex.Crim.App. 2002); see Cravin v. State, 95 S.W.3d 506, 508 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (convicting court's denial of appellant's motion seeking DNA testing made implied determination evidence did not exist in compliance with article 64.03); Thompson v. State, 95 S.W.3d 469, 471 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (Article 64.05 authorizes appellate court to review trial court's findings, express or implied, on appellant's chapter 64 motion). Further, nothing in articles 64.03 or 64.05 requires a trial court to enter written findings of fact or conclusions of law after determining whether the requirements have been met to permit DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.03, 64.05 (Vernon Supp. 2003). Under these circumstances, we decline to impose such a requirement. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in denying his motion for forensic DNA testing. A convicting court may order forensic DNA testing only if the court finds that the evidence still exists, the evidence is in a condition making DNA testing possible and has been subjected to a sufficient chain of custody, and identity was or is an issue in the case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2003). The convicted person must establish by a preponderance of the evidence that a reasonable probability exists that (1) the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, (2) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or the administration of justice. Id. art. 64.03(a)(2). In reviewing the trial court's decision whether to allow DNA testing under chapter 64 of the code of criminal procedure, 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, while we review de novo other application-of-law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). In this case, the hearing-impaired complainant, sixteen at the time of the offense, testified she was at home doing homework on the night of January 26, 1997. Her grandfather was home, but he was in his room asleep. The complainant heard a knock on the front door and opened the door, thinking it was her grandmother coming home. Instead, appellant came in the house and followed the complainant to her bedroom where he raped her. The complainant "fell asleep" and, when she woke up, appellant was gone. The complainant went into another room and saw her grandmother. Although the complainant wanted to tell her grandmother what happened, her grandmother said she was not feeling well and needed a rest. When the complainant woke up the next morning, there was "blood and white stuff" on her underwear. Three days after the rape, on Wednesday night, the complainant told a bishop at her church about the rape. Appellant testified the complainant called him on January 27, but she could not understand what appellant was saying. The complainant asked, "Is this Francis?" but then remained silent and did not hang up the phone. Appellant hung up the phone and later called back and briefly spoke to the complainant and then spoke to the complainant's grandmother about a dispute over a phone bill. Appellant testified he had never had any sexual contact with the complainant. However, appellant testified he went to the complainant's grandmother and grandfather for advice when he had problems with his wife. Katherine Long, a forensic seriologist at the Institute of Forensic Sciences in Dallas, testified she received a sexual activity kit including swabs, a vaginal smear, blood sample, and hair samples from the complainant in this case. At a later date, Long received panties, pants, a fitted sheet, and a flat sheet. With the swabs and clothing, Long performed a test for acid phosphatase that would indicate the presence of seminal fluid. On the smears, Long tested for the presence of spermatozoa. After testing, Long did not detect any acid phosphatase or spermatozoa on any of the samples in this case. Long testified there was no physical evidence that a sexual assault took place. However, Long's testing revealed blood on the complainant's panties and traces of blood on her pants and the fitted sheet. Long testified that, when there is no acid phosphatase detected that would suggest the presence of seminal fluid, there are no further DNA tests that can be performed. In addition, Long testified there is no way to determine whether the blood detected on the complainant's panties came from her period or from some other method. Thus, although appellant argues the samples taken in this case may contain "sweat, skin, blood, and or saliva, all of which may be subjected to DNA testing," the record indicates otherwise. Long testified that there is no physical evidence of sexual assault, and there are no further DNA tests that can be performed. Under these circumstances, we conclude the trial court did not err in impliedly finding the evidence in this case is not in a condition making DNA testing possible. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2003). Further, it appears appellant's identity was not at issue in this case. See id. Appellant admitted knowing the complainant and her family. The complainant testified she knew appellant. Appellant's theory at trial was that no assault occurred and the complainant made up the story about the rape, not that someone other than appellant committed the rape. See McBride v. State, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (identity not at issue where appellant met complainant at party and repeatedly assaulted her over several hours and complainant identified appellant). We overrule appellant's second issue. In his third issue, appellant argues he was denied effective assistance of counsel in his post-conviction attempt to obtain DNA testing. The court of criminal appeals has not decided whether an appellant may raise a claim of ineffective assistance arising from a hearing under chapter 64 of the code of criminal procedure. Bell v. State, 90 S.W.3d 301, 307 (Tex.Crim.App. 2002). Assuming that such a claim can be raised, to prevail on his claims appellant must first prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bell, 90 S.W.3d at 307. He must then show that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 687; Bell, 90 S.W.3d at 307. 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. Bell, 90 S.W.3d at 307; Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). The record contains a motion for post-conviction DNA testing filed by appellant's attorney. Appellant complains his counsel was ineffective in failing to file a reply to the State's response to his motion and in failing to re-draft the motion so that it would be meritorious. However, the record indicates there is no physical evidence of sexual assault in this case, and there are no further DNA tests that can be performed. Further, appellant's identity was not at issue, and he was therefore not entitled to post-conviction DNA testing under chapter 64 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2003). Under these circumstances, we cannot conclude appellant's counsel was ineffective in failing to obtain post-conviction DNA testing. See Strickland, 466 U.S. at 687; Bell, 90 S.W.3d at 307. We overrule appellant's third issue. We affirm the trial court's judgment.