No. 14-08-00315-CR
Opinion filed February 19, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 228th District Court Harris County, Texas, Trial Court Cause No. 755523.
Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.
ADELE HEDGES, Chief Justice.
Appellant, Larry Truman, challenges the trial court's order denying his post-conviction motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure. In his first two issues, appellant contends that the trial court erred by conducting a hearing on his motion in his absence and without live testimony. In his third issue, he contends that the trial court erred in denying his motion because he presented sufficient evidence to satisfy the statutory requirements for post-conviction DNA testing. We affirm.
BACKGROUND
Appellant was convicted by a jury in 1997 of indecency with a child. Punishment, enhanced by two prior convictions, was assessed at 75 years' imprisonment. Appellant's conviction was affirmed by the Thirteenth Court of Appeals, and mandate issued in 1998. In October 2004, appellant filed a motion for post-conviction DNA testing pursuant to chapter 64 of the Texas Code of Criminal Procedure, and the trial court appointed counsel. The State filed a motion to deny DNA testing with supporting affidavits asserting that the Harris County District Clerk's Office, the Houston Police Department ("HPD"), and HPD's Crime Lab were not in possession of any biological evidence related to appellant's case. The trial court denied appellant's request for DNA testing and issued findings of fact and conclusions of law. Specifically, the trial court found that appellant failed to show that (1) any biological evidence was secured in relation to the offense, (2) evidence still exists and is in a condition making DNA testing possible, and (3) by a preponderance of the evidence, a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. On appeal, appellant raises three issues. In his first two issues, appellant contends that the trial court erred by conducting a hearing on his motion in his absence and without live testimony. In his third issue, he contends that the trial court erred in denying his motion because he presented sufficient evidence to satisfy the statutory requirements for post-conviction DNA testing. DISCUSSION
In his first issue, appellant argues that the trial court violated his due process rights by conducting a hearing in his absence. Citing article 33.03 of the Texas Code of Criminal Procedure, appellant contends that he had the right to be present during the hearing. See Tex. Code Crim. Proc. art. 33.03. Appellant's reliance on article 33.03 is misplaced because this provision is not applicable to chapter 64 post-conviction DNA proceedings. See id. ("In all prosecutions for felonies, the defendant must be personally present at trial. . . ."). By its plain language, article 33.03 applies only to criminal prosecutions. See id.; see also Vay v. State, No. 14-06-00080-CR, 2007 WL 705620, at *2 (Tex.App.-Houston [14th Dist.] Mar. 8, 2007, pet. ref'd) (mem. op., not designated for publication) ("Unlike a criminal prosecution, a post-conviction DNA hearing does not involve accusations [or a prosecution] against a criminal defendant."); Davis v. State, No. 14-02-00741-CR, 2003 WL 22019581, at *1 (Tex.App.-Houston [14th Dist.] Aug. 28, 2003, pet. ref'd) (mem. op., not designated for publication) (same); Cravin v. State, 95 S.W.3d 506, 509-10 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). The Court of Criminal Appeals and this Court have consistently held that a movant seeking post-conviction DNA testing has no right either to be present or to cross-examine witnesses at a hearing on the motion. See Whitaker v. State, 160 S.W.3d 5, 8-9 (Tex.Crim.App. 2004); Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002); Thompson v. State, 123 S.W.3d 781, 784-85 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). A post-conviction DNA proceeding is akin to a habeas corpus proceeding. Thompson, 123 S.W.3d at 784. Unlike a criminal trial, in which the guilt of the defendant is at issue and the constitution requires his presence, a habeas corpus proceeding is an independent proceeding that makes a collateral inquiry into the validity of the conviction. Id.; Mearis v. State, 120 S.W.3d 20, 25 (Tex.App.-San Antonio 2003, pet. ref'd). Like a habeas proceeding, a post-conviction DNA testing proceeding is an independent proceeding that makes a collateral inquiry into the validity of the conviction. Thompson, 123 S.W.3d at 784; Cravin, 95 S.W.3d at 509-10. Thus, a defendant is not entitled to be present at any hearing held by the court on a motion for DNA testing. Thompson, 123 S.W.3d at 784-85. Because appellant's due process rights were not implicated in the chapter 64 proceeding and because he had no right to be present at the hearing, the trial court did not violate appellant's due process rights by considering the motion in his absence. See id. We overrule appellant's first issue. In his second issue, appellant argues that the trial court erred in failing to conduct an evidentiary hearing allowing him to prove, via live testimony, that he met the statutory requirements for DNA testing. The Court of Criminal Appeals, however, has held that applicants seeking post-conviction DNA testing are not entitled to an evidentiary hearing. Whitaker, 160 S.W.3d at 8-9 (agreeing that chapter 64 of the Code of Criminal Procedure does not require the trial court to conduct an evidentiary hearing); Rivera, 89 S.W.3d at 58-59 (concluding that applicants for post-conviction DNA testing pursuant to article 64.03 are not entitled to an evidentiary hearing with live testimony, or any hearing otherwise). Accordingly, the trial court in this case was not required to conduct an evidentiary hearing with live testimony, or any hearing otherwise. We overrule appellant's second issue. In his third issue, appellant argues that the trial court erroneously denied his motion for DNA testing. The State contends that the trial court correctly denied the motion because appellant failed to (1) identify any evidence containing biological material which could produce exculpatory results if subject to DNA testing, and (2) meet his burden of establishing the existence of a reasonable probability that he would not have been convicted if exculpatory results had been obtained through DNA testing. In reviewing a trial court's decision regarding DNA testing, we employ a bifurcated standard of review. Rivera, 89 S.W.3d at 59. We afford almost total deference to a 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. Id. Under chapter 64 of the Texas Code of Criminal Procedure, a convicted person may file in the convicting court a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. art. 64.01(a). The motion must be accompanied by an affidavit, sworn by the convicted person, containing statements of fact in support of the motion. Id. Under article 64.03, a trial court must find that: (1) evidence still exists and is in a condition that allows DNA testing possible; (2) the evidence has been subjected to a proper chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and (3) identity is an issue in the case. Id. art. 64.03(a)(1); Prible v. State, 245 S.W.3d 466, 467-68 (Tex.Crim.App. 2008). Additionally, a movant must establish by a preponderance of evidence that (1) he would not have been convicted if exculpatory results had been obtained through DNA testing, and (2) the request is not made to unreasonably delay the sentence. Tex. Code Crim. Proc. art. 64.03(a)(2); Prible, 245 S.W.3d at 467-68. In the affidavit accompanying his motion, appellant stated that a witness testified at trial that appellant's blood was retrieved at the crime scene. Appellant claims that "to his knowledge, there was no DNA analysis [on the blood] . . . and if there was . . . there are better ways to test DNA that could reasonably provide more accurate results than the prior test." Appellant further avers in the affidavit that if no testing was done, "in the interest of justice, DNA testing should be done . . . [and that] such testing will prove the blood gathered, at the crime scene, is not mine." Beyond these speculative and conclusory statements, appellant neither alleged nor attempted to establish that (1) the State is still in possession of this biological evidence, and (2) the evidence is susceptible of DNA testing. See Tex. Code Crim. Proc. art. 64.03(a)(1)(A)(i). In fact, the State filed affidavits asserting that the Harris County District Clerk's Office, HPD, and HPD's Crime Lab were not in possession of any biological evidence related to appellant's case. See Cravin, 95 S.W.3d at 511 (concluding that statements made by district clerk's office that it was not in possession of evidence related to the appellant's case were sufficient for the court to find that the evidence did not exist). Additionally, appellant has made no effort to bring forth an appellate record affirmatively demonstrating that identity was an issue during trial. See Russell v. State, 170 S.W.3d 732, 734 (Tex.App.-Waco 2005, no pet.) (concluding that trial court did not err in not finding that identity was an issue at trial because appellant's affidavit did not state any facts indicating identity as an issue at trial); In re McBride, 82 S.W.3d 395, 397 (Tex.App.-Austin 2002, no pet.) (holding that the trial court did not err in refusing to order DNA testing where appellant's affidavit failed to show or explain how identity was an issue). Moreover, appellant neither makes a factual allegation nor establishes 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. art. 64.03(a)(2)(A); Skinner v. State, 122 S.W.3d 808, 813 (Tex.Crim.App. 2003). There is nothing in the record that purports to meet the requirements placed on appellant pursuant to article 64.03 to demonstrate that: (1) the evidence is still in existence and is in a condition making DNA testing possible; (2) the evidence has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in an material respect; and (3) identity was an issue in the case. See Tex. Code Crim. Proc. art. 64.03(a)(1). Appellant's motion and affidavit do not address any of these three items. Thus, appellant's motion is insufficient to entitle him to DNA testing. Because appellant has failed to meet his burden under chapter 64, the trial court did not err in denying his motion for post-conviction DNA testing. We overrule appellant's third issue. We affirm the trial court's order.