Opinion
No. 05-07-01585-CR
Opinion Filed October 29, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F84-76557-T.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
John Wesley Robinson appeals the trial court's order denying his second request for post-conviction DNA testing. In a single issue, appellant contends the trial court erred by denying his motion because the State failed to show there is no evidence to be tested. We overrule appellant's issue and affirm the trial court's order. In 1985, this Court affirmed appellant's conviction for the aggravated sexual assault of a child. See Robinson v. State, 05-85-00314-CR, slip op. at 1(Tex.App.-Dallas Nov. 20, 1985, no pet.) (not designated for publication). In 2001, appellant filed a motion for forensic DNA testing. Following a hearing, the trial court denied appellant's request because appellant failed to meet his burden to show (1) evidence suitable for forensic DNA testing existed; and (2) identity was an issue at trial. At that time, it was undisputed that the only evidence still in existence was a pubic hair that belonged to the victim and there was no other evidence to test. See Robinson v. State, 05-02-00516-CR, 2002WL 31780847, at *2 (Tex.App.-Dallas Dec. 13, 2002, no pet.) (not designated for publication). We concluded that, even if the convicting court ordered a DNA test performed on the pubic hair, the DNA results on the pubic hair would make no difference to appellant's case because it belonged to the victim and therefore, appellant could not make the requisite showing that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Id. On April 18, 2007, appellant again filed a motion for DNA testing. In the motion, appellant sought to have "SWIFS search again for the vaginal swab and smear" obtained in the rape examination and submit it for testing. Appellant did not request the shirt he was wearing at the time of the offense be located nor did he request testing of any biological material which might be on the shirt. Appellant's January 19, 2007 pro se motion for DNA testing was attached as an exhibit to the April 18th formal motion. Appellant did not request the shirt he was wearing at the time of the offense be located nor did he request testing of any biological material which might be on the shirt in his pro se motion. The trial court ordered the district attorney to deliver the physical evidence from appellant's case to the court, or to explain in writing why the evidence could not be delivered. See Tex. Code Crim. Proc. Ann. art. 64.02(a) (Vernon Supp. 2008). In its response, the State informed the trial court it had contacted SWIFS, the Dallas Police Department, and the Dallas County District Clerk's office. SWIFS notified the State it did not have any biological evidence other than the pubic hair belonging to the complainant. The police department notified the State it had obtained appellant's clothing but it was retained by the trial court during appellant's trial. The district clerk's office notified the State it did not possess any evidence related to appellant's case. Thereafter, the trial court denied appellant's request. On appeal, appellant contends for the first time that the State's evidence is insufficient to show there is no evidence to be tested because there might be biological evidence on the shirt he was wearing at the time of the assault, and the record does not show whether the court reporter retained custody of the shirt following the trial. Because appellant did not request testing of the shirt nor did he request the district court to make an inquiry regarding the existence of the shirt, appellant has forfeited the right to complain on appeal regarding the lack of proof regarding the location or existence of the shirt. See Shannon v. State, 116 S.W.3d 52, 55 (Tex.Crim.App. 2003) (holding appellant waived complaint by failing to ask district court to make inquiry regarding location of evidence); Baranowski v. State, 176 S.W.3d 671, 677 (Tex.App.-Texarkana 2005, pet. ref'd) (issue of asking for more investigation by State is waived by failure to request such relief from trial court). Moreover, even if the shirt were to be located, appellant has not shown the shirt would qualify for testing. Under article 64.01 of the code of criminal procedure, evidence that was not previously subjected to DNA testing only qualifies for DNA testing if (1) DNA testing was not available at the time of trial; (2) DNA testing was available but not technologically capable of providing probative results; or (3) through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interests of justice. Tex. Code Crim. Proc. Ann. art. 64.01(b)(1); Routier v. State, No. AP-75,617, 2008 WL 2486417, at *2 (Tex.Crim.App. June 18, 2008). Appellant states that, to his knowledge, evidence "including, but not limited to, the rape kit" was in the State's possession during his trial, was not subjected to DNA testing, and "[t]he testing not being done was through no fault of my own." In short, he contends that he is entitled to post-conviction DNA testing under article 64.01(b)(1)(B). As the court of criminal appeals recently explained in Routier, a convicted person must make "a particularized showing of the absence of fault" to invoke article 64.01(b)(1)(B). Routier, 2008 WL 2486417, at *3. In this case, although appellant's affidavit states the materials had never been tested "through no fault of my own," appellant does not argue that he requested DNA testing at the time of his trial, nor does he offer any specific evidence or explanation about why the lack of DNA testing during his trial was not his fault. Consequently, we cannot conclude that the evidence for which appellant now seeks DNA testing would qualify for testing, nor can we conclude that the trial court erred by denying appellant's motion. See Routier, 2008 WL 2486417, at *8 (convicted person not entitled to test "hitherto untested" DNA evidence because she did not show "that the failure to seek DNA testing under the technology available at the time of trial was not her fault"); see also Dinkins v. State, 84 S.W.3d 639, 642 (Tex.Crim.App. 2002) ("Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court erroneously determined that appellant failed to show the existence of evidence containing biological material that should be subjected to DNA testing."); Warren v. State, 126 S.W.3d 336, 338 (Tex.App.-Dallas 2004, no pet.) (affirming trial court's order denying motion for post-conviction DNA testing because appellant failed to meet any of alternative requirements under article 64.01(b)). We overrule appellant's sole issue. Accordingly, we affirm the trial court's order denying appellant's request for post-conviction DNA testing.
The record from the hearing shows a rape examination was done on the complainant. A vaginal swab, vaginal smear, and pubic hair combings were obtained during the examination. Presumptive tests on the swab and smear showed there was no biological material that could be DNA tested, and the swab and smear were no longer available for testing. A microscopic examination of the pubic hair combings showed there were no foreign hairs present, the only pubic hair obtained belonged to the complainant.