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Fletcher v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
No. 05-04-00496-CR (Tex. App. Mar. 4, 2005)

Opinion

No. 05-04-00496-CR

Opinion issued March 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-57266-R. Affirmed.

Before Justices MORRIS, WHITTINGTON, and O'NEILL.


OPINION


In this appeal, Frederick Fletcher, aka Fredrick Fletcher, challenges the trial court's denial of his motion for post-conviction DNA testing. Appellant contends in his first five issues that the trial court erred in denying the motion. In the alternative, appellant's contends in his sixth issue that he received ineffective assistance of counsel. Concluding appellant's arguments are without merit, we affirm the trial court's order. Appellant submitted samples of his saliva and hair to the State while he was imprisoned pending charges of sexual assault of a child. Before the samples were tested, however, appellant's counsel informed the State that DNA testing was no longer necessary because he intended to plead guilty to the charges. On May 8, 2001, the trial court sentenced appellant to ten years' imprisonment. He did not appeal the judgment. On August 13, 2002, appellant filed his first motion for post-conviction DNA testing. Ultimately, the trial court denied appellant's motion, finding that appellant had not met his burden of showing, under article 64.01 of the Texas Code of Criminal Procedure, that it was through no fault of his own that the evidence had not been tested or that DNA testing was not available or technologically capable of providing probative results at the time of his guilty plea. In his first issue, appellant complains the trial court erred by finding appellant failed to show he was denied DNA testing through no fault of his own. Under article 64.01(b)(1), a convicting court may order forensic testing of DNA evidence that was in the possession of the State during the trial of the offense but was not previously subjected to DNA testing through "no fault of the convicted person for reasons that are of a nature such that the interests of justice require DNA testing." Tex. Code Crim. Proc. Ann. art. 64.01(b)(1)(B) (Vernon Supp. 2004-05). Here, appellant stated in an affidavit that after he gave the State hair and saliva samples for DNA testing, his attorney contacted counsel for the State to announce that testing was no longer necessary because appellant planned to plead guilty. Nothing in the record before us shows appellant disagreed with his attorney's actions before and during his trial. He did not file a motion for new trial disputing his attorney's actions. Additionally, he did not file an appeal from the conviction. Based on the record before us, we conclude the trial court did not err by finding appellant failed to show he was denied DNA testing through no fault of his own. See Kutzner v. State, 75 S.W.2d 427, 441-42 (Tex.Crim.App. 2002). We resolve appellant's first issue against him. In his second issue, appellant complains the trial court erred in denying his motion for post-conviction DNA testing without requiring the State to comply with its duty under code of criminal procedure article 64.02(2) to deliver the requested evidence to the court or explain in writing why the evidence could not be delivered. See Tex. Code Crim. Proc. Ann. art. 64.02(2) (Vernon Supp. 2004-05). Appellant filed his original motion for post-conviction DNA testing on August 13, 2002. At that time, convicted persons could not complain on appeal of the State's failure to comply with article 64.02(2). The code of criminal procedure in effect at the time appellant filed his motion provided for an appeal of the trial court's procedure under articles 64.03 and 64.04, but not under article 64.02. See Act of April 3, 2001, 77th Leg., R.S., ch. 2, §§ 2, 2001 Tex. Gen. Laws 2, 4, amended by Act of April 25, 2003, 78th Leg., R.S., ch. 13, §§ 5, 8, 2003 Tex. Gen. Laws 16, 16-17 (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004-05)). Although the amended version of article 64.05 now permits an appeal "under this chapter," this version applies only to DNA appeals filed after September 1, 2003. See Tex. Code Crim. Proc. Ann. art. 64.05. Because we do not have jurisdiction over a direct appeal of appellant's article 64.02 complaint, we do not reach the merits of the complaints raised in appellant's second issue. We will discuss appellant's third and fifth issues together, because they both concern findings required of the trial court when it orders forensic DNA testing. In his third issue, appellant complains the trial court erred by denying his motion for post-conviction DNA testing without issuing findings on whether identity had been at issue in the case. A convicting court may order forensic DNA testing under chapter 64 of the code of criminal procedure only if it finds, among other things, that identity "was or is an issue in the case." Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004-05). Such a finding is required under article 64.03 only when the convicting court is granting a motion for DNA testing; nothing in the article requires the trial court to issue findings on identity when the trial court denies a motion. See id. Accordingly, the trial court did not err in failing to issue findings on whether identity was an issue in appellant's case, where the court in fact denied appellant's motion for post-conviction DNA testing, based on appellant's failure to meet his threshold burden under article 64.01(b). We resolve appellant's third issue against him. Similarly, appellant argues in his fifth issue that the trial court erred by denying his motion for post-conviction DNA testing without issuing findings under articles 64.03(a)(2)(A) and (B) of the code of criminal procedure. Under these articles, the convicting court cannot order DNA testing unless it finds, among other things, that the convicted person has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing and the request for DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Id. arts. 64.03(a)(2)(A), 64.03(a)(2)(B). As discussed above, the findings detailed in article 64.03 are required only when the trial court decides to order forensic DNA testing. In appellant's case, the trial court denied appellant's motion for DNA testing, finding that appellant had not met his threshold burden under article 64.01(b). Therefore, the trial court did not err by denying appellant's motion without findings on the factors detailed in article 64.03. We resolve appellant's fifth issue against him. In his fourth issue, appellant complains the trial court erred by denying his request to appoint an expert to interpret the results of any DNA testing. The trial court did not order any post-conviction DNA testing, and no testing had been done before appellant's trial. Thus, regardless of whether he was entitled to one, no expert was necessary in appellant's case. The trial court did not err. We resolve appellant's fourth issue against him. Appellant complains in his sixth issue that he received ineffective assistance of counsel during the process of requesting post-conviction DNA testing. He alleges that at the hearing on his motion, counsel failed to adequately present evidence to the trial court that he was denied DNA testing at his original trial through no fault of his own and that the interests of justice required testing. He further alleges counsel, at the hearing, failed to present any evidence or argument that he was innocent of the charges or that a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. This Court has previously held that a person appealing a trial court's denial of his motion for post-conviction DNA testing has no right to raise a claim of constitutionally ineffective assistance of counsel. See Hughes v. State, 135 S.W.3d 926, 927 (Tex.App.-Dallas 2004, pet. ref'd). We therefore resolve appellant's sixth issue against him. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.


Summaries of

Fletcher v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
No. 05-04-00496-CR (Tex. App. Mar. 4, 2005)
Case details for

Fletcher v. State

Case Details

Full title:FREDERICK FLETCHER, aka FREDRICK FLETCHER, Appellant v. THE STATE OF…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 4, 2005

Citations

No. 05-04-00496-CR (Tex. App. Mar. 4, 2005)