No. 01-05-00502-CR
Opinion issued August 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause No. 517758.
Panel consists of Justices KEYES, ALCALA, and BLAND.
JANE BLAND, Justice.
David Wayne Fontenot a/k/a Derrick Wayne Fontenot challenges the convicting court's order denying his motion for post-conviction DNA testing. In six issues, Fontenot contends the trial court (1) violated his federal and state constitutional rights to due process, confrontation, and cross-examination by conducting a final hearing on the motion outside his presence; (2) erred in considering the State's affidavits submitted in response to his motion because they contain inadmissible hearsay; and (3) erred in denying his motion because the State failed to establish that it does not have biological materials in its possession. We affirm.
Background
A jury convicted Fontenot of aggravated robbery in 1989 and assessed punishment at fifty years' confinement. We affirmed Fontenot's conviction. See Fontenot v. State, No. 01-89-00390-CR, 1990 WL 93151 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (not designated for publication). In July 2002, Fontenot moved in the convicting court for post-conviction DNA testing, pursuant to Chapter 64 of the Texas Code of Criminal Procedure. Fontenot attached a supporting affidavit to his motion, requesting DNA testing of a Coca-Cola can that he believed law enforcement officials had recovered during the course of their investigation. In response, the State offered affidavits from the records custodians of the Harris County District Clerk, the Houston Police Department ("HPD") Crime Lab, and the HPD Property Room. Each custodian swore that his or her department possesses no evidence relating to Fontenot's conviction. The convicting court denied Fontenot's motion for post-conviction DNA testing and entered findings of fact and conclusions of law. Specifically, the court found that Fontenot failed to meet his burden of showing that evidence still exists and is in a condition making DNA testing possible. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2005). The court further found that Fontenot failed to show by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.03(a)(2)(A), 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (Vernon Supp. 2005)). Fontenot filed a written objection to the proceedings and evidence, which the convicting court denied. This appeal followed. Standard of Review
We review the convicting court's decision with regard to DNA testing using the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We afford almost total deference to the convicting court's determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor, while we review other application-of-law-to-fact issues de novo. Id.; see also Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). Employing this standard, we defer to the convicting court's finding as to whether the claimed DNA evidence exists and is in a condition to be tested. Rivera, 89 S.W.3d at 59. Analysis
Article 64.01 of the Texas Code of Criminal Procedure allows a convicted person to submit to the convicting court a motion for DNA testing. See TEX. CODE CRIM. PROC. ANN. art. 64.01(a) (Vernon Supp. 2005). The motion must be accompanied by a sworn affidavit "containing statements of fact in support of the motion." Id. Upon receipt of the motion, the convicting court must provide the State's attorney with a copy and require the State either to (1) deliver the evidence to the court or (2) explain in writing why it cannot do so. Id. art. 64.02. The court may then order DNA testing under article 64.03 if it finds that (1) the evidence still exists, is in a condition making DNA testing possible, and is subject to a chain of custody sufficient to establish that it has not been altered; (2) identity was or is an issue in the case; and (3) the convicted person has established by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, § 2, art. 64.03(a), 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2005)). Constitutional Claims In his first four issues, Fontenot contends the convicting court violated his federal constitutional right to due process and his state constitutional right to confrontation and cross-examination by conducting a final hearing on his motion for DNA testing outside his presence. The Court of Criminal Appeals has held, however, that "[n]othing in Chapter 64 requires the trial court to conduct a hearing" when considering a post-conviction motion for DNA testing. Whitaker v. State, 160 S.W.3d 5, 8-9 (Tex.Crim.App. 2004) (citing Cravin v. State, 95 S.W.3d 506, 509 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd)); see also Rivera, 89 S.W.3d at 58-59 ("Nothing in Article 64.03 requires a hearing of any sort concerning the trial court's determination of whether a defendant is entitled to DNA testing."). As in a habeas corpus proceeding, an applicant for post-conviction DNA testing enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing on the motion. Thompson v. State, 123 S.W.3d 781, 784 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Cravin, 95 S.W.3d at 510). Consequently, an applicant for DNA testing "has no separate constitutional right to cross-examine witnesses who offer affidavits about whether testable evidence exists." Caddie v. State, 176 S.W.3d 286, 289 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (citing Cravin, 95 S.W.3d at 509-10). We thus conclude that Fontenot's absence from the hearing violated neither his right to confrontation and cross-examination nor his right to due process. See id. at 288-89 ("We conclude that Caddie's absence from the hearing does not violate his Confrontation Clause rights. We further conclude that the Due Process Clause of the United States Constitution does not require that an applicant be present at a proceeding on a motion for forensic DNA testing.") (citations omitted). Hearsay In his fifth issue, Fontenot contends the convicting court erred in considering the State's affidavits because they contain inadmissible hearsay in violation of the Texas Rules of Evidence. As we previously discussed, however, article 64.03 does not require an evidentiary hearing to determine whether DNA evidence exists. See Whitaker, 160 S.W.3d at 8-9; Rivera, 89 S.W.3d at 58-59. Thus, the rules of evidence are not implicated in circumstances in which the trial court does not hold an evidentiary hearing. Thompson, 123 S.W.3d at 785; Mearis v. State, 120 S.W.3d 20, 25 (Tex.App.-San Antonio 2003, pet. ref'd). Rather, the convicting court may reach a decision based solely on the convicted person's motion and affidavit and the State's response, without holding a hearing. Thompson, 123 S.W.3d at 785 (citing Cravin, 95 S.W.3d at 509). Denial of Motion for DNA Testing In his final issue, Fontenot contends the convicting court erred in denying his motion for DNA testing because the State failed to satisfy its burden of showing that no evidence exists to test. Specifically, he complains that "Harris County has within its territorial boundaries a plethora of police and other law enforcement agencies," and he urges that "samples could have been sent to any number of additional outside laboratories." We considered an identical argument in Caddie and concluded that "Chapter 64 does not require the State to obtain an affidavit of no testable evidence from every laboratory and police agency in the region." Caddie, 176 S.W.3d at 289; see also Thompson, 123 S.W.3d at 786 ("The State was not required to obtain affidavits from every criminal justice department in the county as to criminal investigations in which they were not involved."). In Caddie, as in this case, the offense occurred in Harris County, it was investigated by HPD, and the same three agencies provided affidavits. Caddie, 176 S.W.3d at 290. Though Fontenot speculates that another agency might possess testable DNA evidence, he points to no evidence in the record supporting such speculation. "Without a showing of any basis for such a possibility in the trial court, we conclude that the evidence before the trial court was sufficient to support its finding." Id. Conclusion
We affirm the convicting court's order denying Fontenot's motion for post-conviction DNA testing.