Opinion
No. 04-03-00029-CR.
Delivered and Filed: February 4, 2004. DO NOT PUBLISH.
On Appeal from the 186th Judicial District Court, Bexar County, Texas Trial Court No. 1996-CR-3653 Honorable Sam Katz, Judge Presiding. Motion to Withdraw Granted; Affirmed.
Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
MEMORANDUM OPINION
Appellant Eddie Stewart was charged with the offense of aggravated sexual assault of a child. He pled guilty and was sentenced to ten years imprisonment. Stewart now appeals the trial court's order denying his motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01-.05. (Vernon Supp. 2003). The court based its order on the finding that no biological evidence had been maintained by the State. Stewart's court-appointed attorney on appeal filed a brief in which counsel concludes this appeal is frivolous and without merit. Counsel also filed a motion to withdraw. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Specifically, counsel states Stewart was provided with a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief if he wished. Stewart has chosen to do so. In his brief, Stewart raises four issues. In his first issue, Stewart contends the trial court erred in denying his request for DNA testing based on the lack of testable biological material because the evidence was insufficient to establish this fact. Under the Texas Code of Criminal Procedure, a convicted person may submit a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon 2003). Upon receipt of the motion, the convicting court must require the State to either (A) deliver the evidence, along with a description of the condition of the evidence, to the court, or (B) explain in writing to the court why the state cannot deliver the evidence. Tex. Code Crim. Proc. Ann. art. 64.02(2) (Vernon 2003). On appeal, Stewart argues the trial court erred in denying his motion because the State did not deliver the evidence or provide an explanation in writing as to why they did not deliver the evidence. Contrary to Stewart's contention, the State did file a response to his motion, along with a biological evidence affidavit from the quality assurance manager and designated records custodian for the Bexar County Criminal Investigation Laboratory, explaining that there was no biological evidence maintained in the case. Stewart also complains that there was not sufficient proof to show the absence of biological evidence. In reviewing a trial court's DNA testing ruling, we afford almost total deference to that court's determinations of historical fact issues and application of the law to fact issues that turn on credibility and demeanor. Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). We review all other application of law to fact issues de novo. Id. The trial court here found that evidence possibly containing biological material had been destroyed. Deferring to this finding of historical fact, we conclude that the trial court did not err in refusing to order DNA testing. We find Stewart's first issue to be without merit. In his second issue, Stewart argues he was denied the opportunity to confront and cross-examine the state's witness at his DNA testing hearing in violation of his federal and state constitutional rights. See U.S. Const. amend. VI, amend XIV; Tex. Const. art. 1, § 10. An appellant, however, does not have a constitutional right to confront and cross-examine witnesses at a post-conviction hearing. Mearis v. State, 120 S.W.3d 20, 25 (Tex.App.-San Antonio 2003, pet. ref'd); Cravin v. State, 95 S.W.3d 506, 510 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule Stewart's second issue. In his third issue, Stewart contends the trial court erred in admitting the aforementioned affidavit which contained allegedly inadmissible hearsay. However, no evidentiary hearing is required in considering whether DNA evidence exists. Mearis, 120 S.W.3d at 25. Therefore, the rules of evidence are not necessarily implicated. Id. Additionally, the State's written explanations need not be accompanied by affidavits. Id.; Cravin, 95 S.W.3d at 511; see also Rivera, 89 S.W.3d at 59 (affidavit evidence is perfectly acceptable in this context). We overrule Stewart's third issue. In his fourth and final issue, Stewart argues he received ineffective assistance of counsel at his post-trial DNA motion hearing and throughout the course of his appeal. In order to prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) prejudice, that is, a reasonable probability that, but for trial counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 2002). It is appellant's burden to overcome the presumption that the counsel's actions might be considered sound trial strategy. Strickland, 466 U.S. at 689. The appellant must prove, by a preponderance of the evidence, that his counsel's performance fell outside the wide range of reasonable professional assistance. Id.; Thompson, 9 S.W.3d at 813. Stewart has failed to meet his burden under the Strickland test. We, therefore, overrule his fourth issue. We have reviewed the record and briefs and agree the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw filed by Stewart's counsel. See Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.).
Counsel also detailed the procedure for obtaining the record. See Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.).