No. 14-05-00221-CR
Opinion filed May 11, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 549,273. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
JOHN S. ANDERSON, Justice.
Appellant, Roy Jackson, appeals the denial of his post-conviction motion to test DNA evidence. In appellant's first and second points of error, he contends the trial court committed reversible error when it conducted the DNA hearing without appellant being present. In appellant's third point of error, he contends the trial court erred in finding identity was not and is not an issue in this case. We affirm.
PROCEDURAL BACKGROUND
In December 1991, a jury found appellant guilty of sexual assault and sentenced him to thirty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. This court affirmed the judgment of the trial court. In October 2004, appellant filed a post-conviction motion for forensic DNA testing of evidence collected in a rape kit from the complainant, Nancy Dawn Wallace. The State responded and requested the trial court deny the motion. The trial court held a DNA hearing on February 17, 2005. The trial court issued findings of fact and conclusions of law, whereby it denied appellant's motion because appellant failed to prove identity was or is an issue in this case. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B) (Vernon Supp. 2005). Appellant filed a timely notice of appeal. DISCUSSION
1. Constitutional Issues Waived In appellant's first and second points of error, he contends the trial court committed reversible error when it conducted the DNA hearing without appellant's presence, violating federal due process and state constitutional rights of confrontation and cross-examination. Appellant was represented by counsel at this proceeding, but his counsel made no objections to the trial court on due process or confrontation grounds. Appellant has failed to preserve these issues for review because he did not first present them to the trial court. See TEX. R. APP. P. 33.1. Moreover, appellant's arguments are without merit. This court decided these same issues in Thompson v. State, in which we held a trial court does not violate a convicted felon's federal constitutional due process rights or state constitutional confrontation clause rights by conducting the post-conviction DNA hearing without the convicted felon being present. See 123 S.W.3d 781, 783-85 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We overrule appellant's first and second points of error. 2. Identity At Issue In appellant's third point of error, he contends the trial court erred by denying his motion for post-conviction DNA testing. We review a convicting court's denial of 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). We afford almost total deference to the trial court's determination of issues of historical fact and the application of law to fact issues that turn on an evaluation of credibility and demeanor. Id. 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. Id. Article 64.03 permits a trial court to order DNA testing only if the court finds (1) the evidence still exists and is in a condition making DNA testing possible, (2) the evidence has been subjected to a sufficient chain of custody, and (3) identity was or is an issue in the case. TEX. CODE CRIM. PROC. ANN. art. 64.03(a). The convicted person must prove by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing and that the request is not made to unreasonably delay the administration of justice. Id. § 64.03(a)(2)(A)-(B). Appellant argues a plea of "not guilty" is sufficient to raise the issue of identity at trial because such a plea puts every material allegation in the indictment at issue, citing article 27.17 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 27.17 (Vernon 1989). Based on that premise, appellant concludes anytime a defendant pleads "not guilty" at trial, requiring the State to prove all elements of the offense beyond a reasonable doubt, such a defendant would be entitled to post-conviction DNA testing unless an uncontroverted confession is admitted into evidence. We disagree with appellant's conclusion because such a rule would overtake the trial court's role in considering the requirements of article 64.03 and would conflict with the convicted person's burden of proof to show the person would not have been convicted by a preponderance of the evidence. See Smith v. State, 165 S.W.3d 361, 364 (Tex.Crim.App. 2005) (analyzing the legislative intent of article 64.03 requiring a convicted person to prove there is a 51 percent chance the defendant would not have been convicted). Appellant also argues he never conceded or removed identity as an issue at trial. On appeal from his conviction, this court found appellant's defense at trial was that the encounter between the complainant and appellant was consensual. See Jackson v. State, No. B14-91-00530-CR, 1991 WL 273184, at *2 (Tex.App.-Houston [14th Dist.] Dec. 19, 1991, pet. ref'd) (not designated for publication). The trial court issued the following findings of fact: (1) appellant addressed consent during voir dire; (2) appellant challenged the complainant's credibility during trial; (3) during appellant's case-in-chief, his nephew testified he saw the complainant kissing appellant several days before the date the assault was alleged to have occurred; and (4) defense counsel argued the defense of consent before the jury during closing arguments. This court has held a defense of consensual intercourse does not raise the issue of identity when the defendant was accused of sexual assault, and we have upheld the denial of post-conviction DNA testing under these circumstances. See, e.g., Scott v. State, No. 14-04-00612-CR, 2005 WL 1981050, at *2 (Tex.App.-Houston [14th Dist.] Aug. 16, 2005, pet. ref'd) (not designated for publication); Lopez v. State, No. 14-03-00871-CR, 2004 WL 503323, at *2 (Tex.App.-Houston [14th Dist.] Mar. 16, 2004, pet. ref'd) (not designated for publication). Based on the information in the record before us, we hold appellant did not show identity was or is an issue in this case, and the trial court did not err in denying appellant's motion for DNA testing. Accordingly, we overrule appellant's third point of error. Conclusion
Having considered and overruled each of appellant's three issues on appeal, we affirm the judgment of the trial court.