Opinion
No. 05-03-00628-CR.
Opinion issued February 4, 2004. DO NOT PUBLISH, Tex.R.App.P. 47.
On Appeal from the 291st District Court Dallas County, Texas Trial Court Cause No. F92-45214-Nu. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
OPINION
Johnny Ray Miller appeals the trial court's denial of his motion for post-conviction DNA testing. In three issues, appellant argues his motion should have been granted, and the trial court erred in denying his motion without a hearing and allowing evidence to remain in the custody of the State. We affirm the trial court's order. In October 1992, appellant was charged with the aggravated sexual assault of thirteen-year-old E.S. At trial, the State presented E.S.'s testimony that, in April 1992, she spent the night at her friend's house. While her friend and her friend's mother went to the store, E.S. was left alone with appellant, who raped her. E.S. subsequently became pregnant, and DNA tests indicated a 99.96 percent probability that appellant was the father. The jury convicted appellant of aggravated sexual assault. In October 2002, appellant filed his motion for post-conviction DNA testing, and the State filed its response. On March 31, 2003, the trial court entered an order denying appellant's motion on the grounds that identity was not at issue and appellant failed to show that he would not have been convicted based on the victim's testimony alone or that advances in DNA testing would have changed the outcome of the 1993 DNA tests. This appeal followed. In his first issue, appellant argues the trial court erred in failing to hold a hearing on his motion for post-conviction DNA testing before denying the motion. The court of criminal appeals has recently held that "[n]othing in Chapter 64 [of the code of criminal procedure] requires the trial court to conduct a hearing, regardless of whether the State attaches affidavits to its response." Whitaker v. State, No. 74,612, 2004 WL 63981, at *3 (Tex.Crim.App. Jan. 14, 2004). Accordingly, we cannot conclude the trial court erred in failing to conduct a hearing on appellant's motion. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in concluding he was not entitled to post-conviction DNA testing. Specifically, appellant challenges the trial court's findings that (1) identity was not in issue, (2) appellant failed to show he would not have been convicted based on complainant's testimony alone, and (3) appellant did not show advances in DNA testing would alter the outcome of the 1993 test. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. Pamph. 2004). Unless it finds that identity was or is an issue in the original trial, a convicting court may not order post-conviction DNA testing. See id. art. 64.03(a)(1)(B). Because the question of whether an identity was an issue in the case is an application-of-law-to-fact question, we review the trial court's determination de novo. See Eubanks v. State, 113 S.W.3d 562, 565 (Tex.App.-Dallas 2003, no pet. h.). Appellant argues evidence exists that he was not the E.S.'s baby's father and that he would not have been convicted based on E.S.'s testimony alone. However, we cannot conclude this evidence places in issue appellant's identity as the person who sexually assaulted E.S.E.S. testified she knew appellant, her friend's mother's boyfriend. We overrule appellant's second issue. In his third issue, appellant argues the trial court erred in allowing evidence to remain in the custody of the State. Article 64.02 of the code of criminal procedure states that when a convicted person submits a motion for post-conviction DNA testing, the State must "deliver the evidence to the court, along with a description of the condition of the evidence" or "explain in writing to the court why the state cannot deliver the evidence to the court." However, at the time of appellant's motion for post-conviction DNA testing in October 2002, the code of criminal procedure only provided for appeals from findings under article 64.03 or 64.04. Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2003). Although article 64.05 has since been amended to authorize appeals under all of chapter 64, that amendment is only applicable to motions for DNA testing filed after September 1, 2003. Tex. Code Crim. Proc. Ann. art. 64.01 historical note (Vernon Supp. 2004) [Act of May 9, 2003, 78th Leg., R.S., ch. 13, § 8, 2003 Tex. Gen. Laws 16, 17. Thus, any amendments to article 64.05 are not relevant to appellant's appeal, and we lack jurisdiction to address an appeal from a trial court's action pursuant to article 64.02. In any case, because identity is not at issue in this case, any failure of the trial court to comply with article 64.02 was harmless. See In re McBride, 82 S.W.3d 395, 396 (Tex.App.-Austin 2002, no pet.). We overrule appellant's third issue. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.