Opinion
No. 01-02-00763-CR.
Opinion issued February 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 775393.
Panel consists of Justices TAFT, KEYES, and BLAND.
MEMORANDUM OPINION
A jury convicted appellant Wayne Merritt of sexual assault of a child in 1999. In May 2002, Merritt filed a motion for post-conviction DNA testing in the convicting court. The court denied Merritt's motion, based in part on its determination that no biological evidence existed to test. Merritt appeals, asserting that the trial court used a standard of proof that violates his constitutional right to equal protection. We affirm the trial court's order.
Background
In the trial court, Merritt claimed he is entitled to DNA testing because (1) the complainant in his underlying case has received treatment at Texas Children's Hospital for a sexually transmitted disease; (2) he is sure that her examination report is on file at the hospital; and (3) his DNA should be tested "against the examination." The State responded that the only evidence it has from the underlying case is a chart and a stipulation of evidence kept in the Harris County District Clerk's files. The State further explained that neither the Houston Police Department (HPD) nor the HPD Crime Lab possessed any DNA evidence from the incident giving rise to the offense. In support, the State submitted affidavits from the HPD property and records custodian, the HPD Crime Lab property and records custodian, and the Exhibits Clerk of the Harris County District Clerk. In June 2002, the trial court ordered that the Harris County District Clerk "submit the evidence, if any, for examination and testing, to determine if biological items exist and if so, to immediately begin comprehensive DNA testing on this evidence." The trial court noted that the "State has already complied with [this request]" and denied Merritt's request that he be made available to submit a biological sample for DNA comparison. Merritt appealed the June order, complaining that the trial court should have issued written findings in support of its decision pursuant to Article 64.03 of the Texas Code of Criminal Procedure. The initial relief Merritt requested became moot when the trial court issued an amended order, accompanied by findings of fact and conclusions of law, on September 11, 2003. The amended order denied Merritt's motion. Both Merritt and the State then filed supplemental briefs addressing Merritt's claim that the amended order violates his constitutional right to equal protection of law. See Williams v. State, 937 S.W.2d 479, 484 (Tex.Crim.App. 1996).Equal Protection
Merritt contends that the amended order relies upon a version of Article 64.03 of the Texas Code of Criminal Procedure that is no longer the law and thus violated his equal protection rights under the Fourteenth Amendment of the United States Constitution. Effective September 1, 2003 — 10 days before the trial court's amended order — the Legislature amended Article 64.03(a)(2)(A) to require that a convicted person establish "by a preponderance of the evidence that . . . the person would not have been convicted if exculpatory results had been obtained through DNA testing . . ." TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(2)(A) (Vernon Supp. 2004). Before the amendment, the law allowed for DNA testing upon a showing that "a reasonable probability" existed that a person "would not have been prosecuted or convicted" had DNA results been available. The enabling language for the amendment reads in part:The change in law made by this Act applies only to a convicted person who on or after the effective date of this Act submits a motion for forensic DNA testing of evidence under Article 64.01, Code of Criminal Procedure, as amended by this Act. A convicted person who submits a motion under Article 64.01 before the effective date of this Act is covered by the law in effect when the motion was submitted, and the former law is continued in effect for that purpose.TEX. CODE CRIM. PROC. ANN. art. 64.03 (Vernon Supp. 2004) (emphasis added). Because Merritt filed his motion for post-conviction DNA testing before September 1, 2003, the trial court applied the pre-amendment version of Article 64.03. Merritt contends that the amended version of Article 64.03(a)(2)(A) presents a "less onerous burden of proof" and that the equal protection clause requires that the amended version apply to his pre-effective date request. Before deciding any constitutional claim, however, we must first assure ourselves that Merritt sustained an injury by the application of the amended version of Article 60.03(a)(2)(A). See Meshell v. State, 739 S.W.2d 246, 250 (Tex.Crim.App. 1987). Merritt has standing to challenge the constitutionality of Article 64.03(a)(2)(A) only if it adversely impacted his own rights. Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App. 1992). In this case, Merritt sustained no injury under Article 64.03(a)(2)(A) because the trial court found that no DNA evidence exists to test. Article 64.03(a)(1) requires that an applicant for DNA testing satisfy the trial court that (a) testable biological evidence exists in a condition making forensic DNA testing possible and has not been altered or tampered with in any material respect, and (b) identity was or is an issue in the case. Id. at. 64.03(a)(1)(A) (B). See also Rivera v. State 89 S.W.3d 55, 59 (Tex.Crim.App. 2002) (referring to Article 64.03(a)(1) and Article 64.03(a)(2) as two separate "requirements" and applying different standards of review to each "requirement"). Merritt offered no evidence to support his assertion that testable DNA exists. Purported DNA evidence from unrelated hospital treatment not offered at trial meets neither requirement, particularly when there is no showing that such evidence even exists. Moreover, the record supports the trial court's finding that the HPD Property Room, the HPD Crime Lab, and the Harris County District Clerk did not possess evidence that could be tested for DNA. The trial court thus correctly determined that Merritt failed to meet either of the requirements for testing imposed by Article 64.03(a)(1)(A). See Lopez v. State 114 S.W.3d 711, 717 (Tex. App.-Corpus Christi 2003, no pet.) (convicting court properly denied appellant's motion for post-conviction DNA testing because record supported finding that no evidence containing biological material capable of DNA testing existed).
Conclusion
The amendments to the second section of Article 64.03 do not abrogate the initial requirement under the first section that DNA evidence must exist and be in a condition making testing possible. Merritt failed to demonstrate either. He therefore has no standing to challenge the constitutionality of the effective date of the amendments to the second half of Article 64.03. We affirm the trial court's order denying authorization for DNA testing. The convicting court's findings of fact state in relevant part:
5. The Court finds that the defendant fails to meet the requirements of TEX. CODE CRIM. PROC. art. 64.03(a)(1), showing that the evidence still exists and is in a condition making DNA testing possible.
6. The Court, based on the defendant's failure to meet the requirement of art. 64.03(a)(1), finds in the negative the issues listed in 64.03(a)(1).
7. The Court finds, based on the lack of evidence, that the defendant fails to show by a preponderance of the evidence that a reasonable probability exists that the defendant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.
Article 64.03(a) provides:
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (Vernon Supp. 2004) (emphasis added to identify text deleted by 2003 amendment).