No. 05-05-01353-CR
Opinion issued October 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F75-9970-N. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
Opinion By Justice MAZZANT
Harvey Smith appeals the trial court's order denying his motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure. In two issues, he claims the trial court erred in finding that identity was not an issue and that evidence does not exist that is subject to DNA testing under chapter 64. We affirm the trial court's order.
Background
Appellant was convicted of murder on December 17, 1975, and sentenced to life in prison. Smith v. State, 557 S.W.2d 299, 300 (Tex.Crim.App. 1977). On September 9, 2004, he filed a motion for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure. The trial court denied the motion without a hearing on August 25, 2005. The trial court's order concludes evidence does not exist that is subject to DNA testing and identity is not an issue in the case. Standard of Review
We review the trial court's ruling on a post-conviction motion for forensic DNA testing under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex.Crim.App. 2004). We afford almost total deference to the "trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues." Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002); see also Wilson v. State, 185 S.W.3d 481, 484 (Tex.Crim.App. 2006). Discussion
In his first issue, appellant argues that the trial court erred in finding that identity was not an issue in appellant's motion for post-conviction DNA testing under article 64.03(a). In his second issue, appellant argues that the trial court erred in finding that evidence does not exist that is subject to DNA testing under chapter 64. The State responds that the trial court properly denied appellant's motion because (1) no evidence is available for testing; (2) appellant failed to prove identity was an issue in the case; and (3) appellant failed to prove by a preponderance of the evidence that he would not have been convicted had exculpatory DNA test results been available. Under chapter 64 of the code of criminal procedure, a trial judge may order forensic DNA testing only if the trial judge finds (1) the evidence still exists, is in a condition making DNA testing possible, and 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; (2) identity was or is an issue in the case; (3) the "convicted person establishes by a preponderance of the evidence" that he "would not have been convicted if exculpatory results had been obtained through DNA testing;" and (4) "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). In appellant's first issue, he argues the trial court erred in finding identity was not or is not an issue in this case. A defendant has the burden to show that identity was or is an issue without regard to the possible results of any future forensic DNA tests. Bell v. State, 90 S.W.3d 301, 306 (Tex.Crim.App. 2002). Appellant claims that the fact he was arrested at the scene of the crime does not exclude the possibility that someone else committed the murder. He also claims identity is raised through the fact that human spermatozoa was found in the deceased's vagina. The State responds that the overwhelming nature of the circumstantial evidence supporting appellant's guilt indicates the trial court did not err in determining identity was not an issue in the case. We agree. According to the published opinion from the Texas Court of Criminal Appeals, appellant and the victim were involved in a minor one-car accident on the morning of August 23, 1975. Smith, 557 S.W.2d at 300. Several hours later, a witness saw a car parked in a field next to his house, heard a scream, and called the police. Id. Garland police found appellant lying next to the victim with his right arm over her neck. Id. Both appellant and the victim were covered in blood. Id. A bloody knife was found only two feet from the victim's body and the victim's necklace was in appellant's pocket. Id. There was testimony that appellant's knuckles were bruised and "puffy." Id. In addition to the neck stab wound that caused her death, the victim had "numerous facial bruises" consistent with someone "beaten severely with the fists." Id. Appellant admitted to having sexual intercourse with the victim shortly before her death. Id. He claimed they were at the apartment of Neal Hamilton and that Hamilton saw them there. Id. But Hamilton testified that he saw neither appellant nor the victim at his apartment. Id. The Texas Court of Criminal Appeals noted that appellant's admission to having sexual intercourse with the victim, combined with the "strong circumstantial evidence of appellant's guilt," rendered the violations of appellant's constitutional rights at trial "harmless beyond a reasonable doubt." Id. at 302. Applying the appropriate standard of almost total deference to the trial court's finding, we conclude the trial court did not err in finding identity was not an issue in the case. In addition to the overwhelming circumstantial evidence, the trial court could have considered appellant's failure to challenge the sufficiency of the evidence on direct appeal in determining whether identity was an issue in the case. See id. at 300-01 (challenging only the collection and admission into evidence of blood and saliva sample taken from appellant while he was incarcerated); see also McBride v. State, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (using lack of sufficiency challenge on original appeal as one of several factors in determining post-conviction DNA testing was properly denied). Because identity was not then and is not now an issue in this case, the trial judge did not err in denying appellant's motion. See Wilson, 185 S.W.3d at 485. We overrule appellant's first issue. In his second issue, appellant argues that the trial court erred in finding that evidence does not exist that is subject to DNA testing under chapter 64. Attached to its response to appellant's motion, the State included reports from the Dallas County District Clerk's Office, the Southwestern Institute of Forensic Sciences, and the Garland Police Department stating that none of these entities were able to find evidence from this case. Appellant offered no evidence to the contrary. We conclude the statements made by the State in its response were sufficient for the court to find that the evidence does not exist. See Cravin v. State, 95 S.W.3d 506, 509 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). And even if the trial court found that the evidence existed, the statute also requires appellant to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). As the movant in the motion for DNA testing, appellant had the burden of showing, by a preponderance of the evidence, that there was a reasonable probability he "would not have been convicted if exculpatory results had been obtained through DNA testing." Wilson, 185 S.W.3d at 484. Here, appellant failed to demonstrate the existence of such a reasonable probability. As the court of criminal appeals noted in its opinion on direct appeal, "strong circumstantial evidence" connected appellant to the crime. Smith, 557 S.W.2d at 302. Because appellant wholly failed to meet his burden, we therefore conclude the trial judge did not err in denying appellant's motion for post-conviction DNA testing. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim.App. 2002). Appellant's second issue is overruled. We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.