Facundo v. State

Full title: VALENTINE FACUNDO, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Mar 16, 2004

No. 14-03-00592-CR (Tex. App. Mar. 16, 2004)

Opinion

No. 14-03-00592-CR.

Memorandum Opinion filed March 16, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 698,837. Affirmed.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.

MEMORANDUM OPINION

PER CURIAM.

This is an appeal from the denial of appellant's post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings three issues challenging the trial court's findings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See 47.1. We affirm.

Background

Appellant filed a post-conviction motion for DNA testing alleging that at the time of his trial and conviction for sexual assault of a child, the State possessed DNA samples that were never analyzed, and he requested the trial court order the State to produce the evidence for testing pursuant to article 64.02(2)(B) of the Texas Code of Criminal Procedure. The trial court appointed counsel to represent appellant. See TEX. CODE CRIM. PROC. ANN. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant's motion and provided affidavits and supporting documentation of the condition of the evidence. The trial court made findings that there was no showing that evidence still exists in a condition making DNA testing possible or that identity was or is an issue in this case. See TEX. CODE CRIM. PROC. ANN. arts. 64.03(a)(1)(A)(i), 64.03(a)(1)(B) (Vernon Supp. 2004). Accordingly, the court denied testing by written order containing its findings and conclusions signed December 19, 2002. Appellant filed a timely, written notice of appeal.

Standard of Review and Applicable Law

We review a trial court's decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Accordingly, we afford almost total deference to the trial court's determination of issues of historical fact and the application of law to the fact issues that turn on an evaluation of credibility and demeanor. Id. However, we review de novo the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id. Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established:

(a) A convicting court may order forensic DNA testing under this chapter only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; and

(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence that:

(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and

(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

Act of April 5, 2001, 77th Leg. R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2004)).¹ By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim. App. 2002).

Dispositive Issue

The convicting court must find that "identity is or was an issue in the case." TEX. CODE CRIM. PROC. ANN. Art. 64.03(a)(1)(B) (Vernon Supp. 2004). In this case, appellant's motion was defective and did not comply with article 64.01. Appellant did not assert or establish below that identity was an issue. On appeal, he does not challenge the trial court's finding that identity was not and is not an issue in this case. Although that deficiency alone is a sufficient basis for the trial court to deny DNA testing, a discussion of appellant's issues follows.

Appellant's Issues

In his first issue, appellant asserts the trial court erred in finding he failed to establish evidence still exists and is in a condition making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. Art. 64.03(a)(1)(A) (Vernon Supp. 2004). In his third issue, he complains that the trial court erred in failing to require the State to produce the existing evidence in court. See TEX. CODE CRIM. PROC. ANN. Art. 64.02(2) (Vernon Supp. 2004). The trial court is entitled to make its determination based solely upon appellant's motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Appellant bears the burden of production or persuasion at each stage under Chapter 64. Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.-Dallas 2003, no pet.). Appellant's motion and affidavit failed to offer any relevant evidence or argument to support the existence of testable DNA material. He merely asserted the State continues to possess biological material related to the crime for which he was convicted. Appellant asserts that the trial court's findings are not supported because the State submitted a supplemental response and supporting affidavit correcting its initial response. Initially, the documentation from the records department showed that the evidence had been destroyed. Upon further investigation, it was discovered that the evidence had not been destroyed, but that it previously had been tested. The State provided an affidavit, supported by a property and evidence report, that lab analysis shows the existing sexual assault kit and clothing already had been tested and no semen was found present. The trial court resolved the conflicting evidence, as reflected in its findings that the sexual assault kit and clothing had been returned to the Houston Police Department Crime Laboratory after testing found no semen was present. We give almost total deference to the trial court's determination of credibility. See Rivera, 89 S.W.3d at 59. Accordingly, appellant failed to meet his burden and the trial court did not err in failing to require the State to produce the evidence in court or in failing to find biological evidence exists for testing. Appellant's first and third issues are overruled. In his second issue, appellant asserts the trial court erred in ruling the interests of justice do not require testing. The trial court made no such finding. As we have held above, the trial court did not err in denying appellant's motion because he failed to meet his burden under Chapter 64 of the Texas Code of Criminal Procedure. See Bell, 90 S.W.3d at 306. Appellant's second issue is overruled. Accordingly, the judgment of the trial court is affirmed.