HURD v. STATE

Full title: LEON TRAVIS HURD, Appellant v. THE STATE OF TEXAS, Appellee

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

Date published: Jan 26, 2004

No. 05-03-01000-CR (Tex. App. Jan. 26, 2004)

Opinion

No. 05-03-01000-CR.

Opinion filed January 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F94-03775-Vj. Affirm.

Before Justices MORRIS, WRIGHT, and RICHTER.

MEMORANDUM OPINION

Opinion By Justice RICHTER.

A jury convicted Leon Travis Hurd for the 1994 aggravated assault of Dallas police sergeant James Shubzda. Hurd appealed and argued, among other issues, that the evidence was legally insufficient to show he knew Shubzda was an officer and show he did not act in self-defense. Hurd also argued the evidence was factually insufficient to show he knowingly, intentionally, or recklessly shot an officer. In a 1996 unpublished opinion, we affirmed the conviction. Hurd v. State, No. 05-94-02014-CR (Tex. App.-Dallas December 19, 1996, pet. ref'd) (not designated for publication). Six years later, Hurd filed a motion for forensic DNA testing, contending the testing was necessary to show Shubzda was shot by a fellow officer. In the alternative, Hurd reasserted he acted in self-defense. The trial court dismissed the motion because Hurd failed to show identity of the perpetrator was at issue. Hurd now appeals that ruling, arguing in two issues that the court erred in finding identity was not an issue and in failing to require the State to respond to the motion. We affirm. Under article 64.01 of the Texas Code of Criminal Procedure, a convicted person may move for DNA testing of evidence "containing biological material." Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2004). Once the person files the motion, the trial court must, pursuant to article 64.02, provide the State's attorney with a copy of the motion and require the attorney either to deliver the evidence to the court or explain in writing why the evidence cannot be delivered. Id. art. 64.02. If the evidence still exists and is in a condition making DNA testing possible, the court may, under article 64.03, order the testing but only if it finds, among other facts, that identity was or is an issue in the case. Id. art. 64.03. A convicted person may appeal a trial court's ruling under 64.03 and, if the motion was filed on or after September 1, 2003, may also appeal the court's actions under article 64.02. Id. art. 64.05 and historical note [Act of April 25, 2003, 78^th Leg., R.S., Ch. 13, §§ 5, 8, 2003 Tex. Gen. Laws 16, 16-17]. In his first issue, Hurd complains the court erred in finding identity was not then and is not now an issue in this case. Hurd asserts he has raised identity as an issue by the mere filing of the motion and by contending that another officer shot Shubzda. We disagree. In reviewing the trial court's decision on the issue of identity, we review whether identity was or is an issue only according to the extent identity was or is an issue without the granting of post-conviction DNA testing. See Bell v. State, 90 S.W.3d 301, 308 (Tex.Crim.App. 2002). Therefore, we look to the evidence that was before the court deciding the motion for DNA testing to determine if the court could have found identity was or is an issue in this case. Cf. In re McBride, 82 S.W.3d 395, 396 (Tex. App.-Austin 2002, no pet.). In this case, the record reflects the issue at trial and on appeal of the conviction was whether Hurd acted in self-defense and knew Shubzda was a police officer. Hurd admitted at trial that he "fired" at Shubzda but claimed he did so in self-defense and not knowing Shubzda was an officer. Further, the trial testimony reflects that Shubzda was shot in a room where Hurd was by himself and the shots came from the direction where Hurd was positioned. This record does not reflect identity was an issue at trial. Nor is identity at issue now. Appellant's contention that a fellow officer injured Shubzda is not supported by the record, and the mere filing of the motion is not sufficient to raise identity as an issue now. See id. The trial court did not err is dismissing Hurd's motion for failing to show identity was or is an issue. We resolve Hurd's first issue against him. In his second issue, Hurd complains the court erred in failing to require the State, pursuant to article 64.02(2), to respond to his motion. As stated, Hurd filed his motion in 2002. At the time, a convicted person could not appeal the trial court's procedure under article 64.02. See Act of April 3, 2001, 77^th Leg., R.S., ch.2, § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004)). Therefore, we have no statutory jurisdiction over this complaint. We dismiss this issue for want of jurisdiction. We affirm the trial court's dismissal of the motion for post-conviction DNA testing.