Opinion
No. 05-07-00597-CR.
Opinion Filed June 19, 2008. Do Not Publish Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F77-05729-J.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
This is an appeal from the trial court's denial of appellant's motion for post-conviction DNA testing. The trial court denied appellant's motion on the basis that biological evidence no longer exists to be tested. We affirm the trial court's order.
Factual Background
In 1977, appellant pleaded guilty to burglary of a habitation with intent to commit aggravated rape. He was convicted and sentenced by the trial court to fifteen years in prison. In 2006, Hurley filed a pro-se motion for post-conviction DNA testing. In that motion, Hurley argued that DNA evidence was gathered from the victim and him, and that an analysis of such evidence would prove his innocence. The trial court ordered the district attorney to turn over the DNA evidence from appellant's case, or to explain in writing to the court why the evidence could not be delivered. See Tex. Code Crim. Proc. Ann. art. 64.02(a)(2) (Vernon Supp. 2007) (on receipt of motion for forensic DNA testing, convicting court must require attorney representing the State to deliver evidence to court or explain in writing why evidence cannot be delivered). The State filed a written response, in which it indicated that "there is no evidence in this case containing biological material that could be subjected to DNA testing." In support of its response, the State submitted letters from the Addison police department, the Southwestern Institute of Forensic Sciences, and the Dallas County District Clerk's Office, each of which stated that no evidence related to this case was located. The district clerk's letter stated, in part:The District Clerk's office became the custodian of all existing felony evidence in early 1989. We have reviewed our records and find that no evidence admitted in the original trial from the above-referenced cause has ever been in our custody. This implies that the court reporter disposed of any evidence from that case prior to our assuming the role of custodian in 1989, and/or failed to ever turn it over to our custody.The trial court issued an order denying appellant's motion, in which the court found that "no biological evidence exists in this case as required by article 64.03(a)(1)(A) of the Texas Code of Criminal Procedure." Appellant timely filed his notice of appeal.
Analysis of Issues on Appeal
In his first issue, appellant complains that his due-process rights were violated because the trial court denied his motion without conducting a hearing or requiring the district attorney to inquire whether the court reporter assigned to appellant's case had any physical evidence that could be tested. Appellant concedes that "no hearing is normally required per se," but argues that in this case, because "so little evidence of the State's good faith due diligence is on record," the trial court should have (1) required that additional evidence be submitted by the State, or (2) conducted a hearing. In response, the State argues that appellant has not preserved this issue for appellate review. Alternatively, the State argues that it met its burden of explaining to the trial court why it could not submit any physical evidence relating to appellant's case. Appellant did not complain to the trial court about the State's alleged lack of inquiry to the court reporter, either before or after the order denying appellant's motion. Under Texas Rule of Appellate Procedure 33.1, a party must first complain to the trial court and obtain a ruling in order to preserve most complaints for appellate review. See Tex. R. App. P. 33.1. The court of criminal appeals has held that rule 33.1 applies to an appeal from a trial court's denial of a motion for post-conviction DNA testing. See Shannon v. State, 116 S.W.3d 52, 54-55 (Tex.Crim.App. 2003). We conclude that appellant has not preserved this issue for appellate review. Nevertheless, even if appellant had preserved this issue for our review, we would overrule it for the same reason we overruled this issue in appellant's prior appeal of another order denying his motion for DNA testing in connection with his separate conviction for aggravated rape:Here, the State was trying to locate biological evidence that was over twenty-five years old. The State contacted the Southwestern Institute of Forensic Sciences, the Addison Police Department, and the Dallas County District Clerk's Office, but none of the agencies could locate the biological evidence. The district clerk's office gratuitously suggested, without indicating the basis for the suggestion, that the court reporter in the case may have disposed of the 1977 evidence or failed to turn it over to the clerk's office in 1989, when that office became the custodian of all existing felony evidence. Based on the record before us, we conclude the State met its burden of explaining to the convicting court why it could not deliver the evidence to the court. We further conclude the trial court did not err in finding, based on the State's response provided it, that the biological evidence no longer existed. We resolve appellant's first issue against him.Hurley v. State, No. 05-06-00034-CR, 2006 WL 3528668, at *1 (Tex.App.-Dallas Dec. 8, 2006, no pet.) (not designated for publication). We overrule appellant's first issue. In his second issue, appellant complains that "if it is true that no evidence currently exists in this case that can be tested for DNA evidence, then the evidence was destroyed in violation of Article 38.43 of the Texas Code of Criminal Procedure." But article 38.43, entitled "Preservation of Evidence Containing Biological Material," does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals. See Tex. Code Crim. Proc. Ann. art. 38.43 (Vernon Supp. 2007); see also Chavez v. State, 132 S.W.3d 509, 510 (Tex.App.-Houston [1st Dist.] 2004, no pet.) ("When the issue is the preservation of evidence containing biological material, the Code of Criminal Procedure does not provide for any relief by the lower court, nor authorize an appeal to the court of appeals."); Woodall v. State, No. 02-06-00101-CR, 2007 WL 117704, at *2 (Tex.App.-Fort Worth Jan. 18, 2007, pet. ref'd) (mem. op.) (not designated for publication) ("the code of criminal procedure does not authorize an appeal to a court of appeals on the ground that the State improperly destroyed DNA evidence"). Consequently, we are without jurisdiction to address whether the State improperly destroyed DNA evidence.