Opinion
Nos. 05-04-00508-CR, 05-04-00509-CR, 05-04-00510-CR
Opinion issued March 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th District Court, Dallas County, Texas, Trial Court Cause No. F97-03324-HR, F97-03735-IR, F97-03736-IR. Affirmed.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
OPINION
Pablo Uvalle, Jr., appeals the trial court's orders denying his motions for post-conviction DNA testing. In six issues, appellant argues the trial court erred in denying his motions and denying his request to appoint an expert, and he received ineffective assistance of counsel. We affirm the trial court's denial of appellant's motions. In March 1998, a jury convicted appellant of aggravated kidnapping, aggravated sexual assault, and robbery. In December 2002, appellant filed a motion for post-conviction DNA testing. In the motion, appellant requested DNA testing of evidence containing biological material that was secured in relation to the underlying convictions and was in the possession of the State during trial but was not previously subjected to DNA testing because DNA testing was not available or was available but not technologically capable of providing probative results. In the alternative, appellant stated the interests of justice required DNA testing. Appellant requested the trial court to order the State to produce the evidence, determine whether the evidence still exists and is in a condition making DNA testing possible, establish the evidence's chain of custody, find that identity is an issue in the case, find that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, and find that the motion was not made to unreasonably delay the execution of sentence or the administration of justice. In support of his request, appellant attached his affidavit in which he asserted his innocence of the charges against him and stated the evidence in the underlying cases was not subjected to DNA testing because DNA testing was not available or was not technologically capable of providing probative results. On January 6, 2003, the trial court dismissed appellant's motion. In its order, the trial court stated its finding that appellant had failed to prove the evidence was not previously subjected to DNA testing, DNA testing was not available at the time of appellant's 1998 trial, DNA testing was available but not technologically capable of providing probative results, or the evidence was not tested through no fault of his own. In addition, the trial court found that the latest DNA testing was available at the time of appellant's 1998 trial, and appellant failed to satisfy the threshold requirements of the post-conviction DNA testing statute, citing article 64.03 of the code of criminal procedure. The trial court dismissed appellant's motions, and this appeal followed. In his first, second, third, fourth, and fifth issues, appellant attacks the trial court's dismissal of his motion for post-conviction DNA testing on virtually all of the grounds required for such a motion under article 64.01 of the code of criminal procedure and for testing under article 64.04. Specifically, appellant argues the trial court erred in (1) dismissing his motion for DNA testing without requiring the State to deliver the requested evidence to the court or explain in writing why the evidence could not be delivered; (2) failing to determine that identity was an issue; (3) concluding appellant failed to prove DNA testing was available at the time of his 1998 trial but not technologically capable of providing probative results; (4) denying appellant's request for the appointment of an expert to determine if more sophisticated DNA testing is currently available; and (5) dismissing appellant's motion without determining, under article 64.03, whether a reasonable probability existed that appellant would not have been convicted if exculpatory results had been obtained through DNA testing, and the request for DNA testing was not made to unreasonably delay the execution of sentence or the administration of justice. See Tex. Code Crim. Proc. Ann. arts. 64.01, 64.03 (Vernon Supp. Pamph. 2004-05). We review a trial court's decision denying a motion for post-conviction DNA testing under the bifurcated standard of review articulated in Guzman v. State 955 S.W.2d 85 (Tex.Crim.App. 1997). Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). 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. Rivera, 89 S.W.3d at 59. Application of law-to-fact issues that do not turn on credibility and demeanor are reviewed de novo, including the ultimate question of whether the trial court was required to grant a motion for DNA testing under article 64.01. See id. Because this appeal does not involve any credibility or demeanor determinations, we review the trial court's legal conclusions de novo. See id. The scope of evidence that an appellate court may review on appeal from the denial of a post-conviction motion for DNA testing is not limited to evidence relating to the motion and/or hearing on the motion for DNA testing. See Jacobs v. State, 115 S.W.3d 108, 112-13 (Tex.App.-Texarkana 2003, pet. ref'd). Under article 64.01 of the code of criminal procedure, a convicted person may request forensic DNA testing of evidence containing biological evidence that was in the State's possession during trial. Tex. Code Crim. Proc. Ann. art. 64.01(b)(1); Dinkins v. State, 84 S.W.3d 639, 641-42 (Tex.Crim.App. 2002). The motion must be accompanied by an affidavit sworn to by the convicted person, containing statements of fact in support of the motion. Tex. Code Crim. Proc. Ann. art. 64.01(a); Dinkins, 84 S.W.3d at 642. For evidence that was not previously subjected to DNA testing, the convicted person must demonstrate in his or her motion that: (1) DNA testing was not available; (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); Dinkins, 84 S.W.3d at 641-42. In this case, appellant submitted a motion for DNA testing in which he enumerated the elements required for the motion under article 64.01 and set forth his entitlement to testing under the requirements under article 64.03. Appellant's motion was supported by his affidavit in which he asserted his innocence of the charges against him and stated the evidence in the underlying cases was not subjected to DNA testing because DNA testing was not available or was not technologically capable of providing probative results. The affidavit further stated that there was a reasonable probability that, had exculpatory results been obtained through DNA testing, he would not have been found guilty of the charges against him. However, the affidavit did not specify any biological evidence that was in the State's possession during trial that remains to be tested. A later affidavit referenced "some spermatic evidence that the State had that was tested and not accurately resulted conclusively." The affidavit also referred to a blood sample that had been tested, resulting in "probabilities" and "not a high degree of match." Based on appellant's motion, the trial court found appellant had failed to prove (1) the evidence in this case was not previously subjected to DNA testing, (2) DNA testing was not available at the time of appellant's 1998 trial, (3) DNA testing was available but not technologically capable of providing probative results, or (4) the evidence was not tested through no fault of appellant. To the contrary, the trial court found the latest DNA testing was available at the time of appellant's 1998 trial. In fact, the record from appellant's trial contains the testimony of Joni Whitmore, who conducted DNA analysis on the spermatozoa recovered from the complainant in the underlying cases and the blood sample recovered from a car at the crime scene. Whitmore testified the spermatozoa matched the complainant's boyfriend, and did not match appellant. However, the blood sample recovered at the crime scene matched appellant with a probability of one in 17,000 Caucasians, one in 1.5 million African Americans, and one in 3000 Hispanics. Whitmore testified that a probability of one in 3000 Hispanics was "considered a high probability." Thus, the record indicates that DNA testing was conducted on the evidence appellant references in his affidavit, and the testing provided probative results which the jury was able to consider. Appellant's motion and supporting affidavits, as well as his issues raised on appeal, complain that his motion for post-conviction DNA testing was meritorious under article 64.01, and he is entitled to post-conviction DNA testing under articles 64.03. However, under the circumstances of this case, we conclude the trial court correctly denied appellant's motion for post-conviction DNA testing on the basis that it did not meet the requirements of article 64.01. See Tex. Code Crim. Proc. Ann. art. 64.01; Dinkins, 84 S.W.3d at 641-42. Because the trial court correctly determined that appellant's motion did not satisfy the requirements of article 64.01, the trial court did not err in failing to appoint an expert to determine if any more sophisticated technology available today would exclude appellant as a contributor of the DNA sample, determine whether identity was an issue in the case, or determine whether a reasonable probability existed that appellant would not have been convicted if exculpatory results had been obtained through DNA testing and the request for the DNA testing was not made to unreasonably delay the execution of sentence or the administration of justice, as required by article 64.03. See Tex. Code Crim. Proc. Ann. art. 64.03. We overrule appellant's first, second, third, fourth, and fifth issues. In his sixth issue, appellant argues his counsel was ineffective in failing to comply with the requirements of article 64.01. Although there is a statutory right to counsel during a proceeding under Chapter 64 of the code of criminal procedure, there is no federal or state constitutional right to counsel under Chapter 64. Winters v. Presiding Judge of the Criminal District Court Number Three of Tarrant County, 118 S.W.3d 773, 774 (Tex.Crim.App. 2003). Because there is no constitutional right to counsel in a Chapter 64 proceeding, there is no constitutional right to effective assistance of counsel. Hughes v. State, 135 S.W.3d 926, 928 (Tex.App.-Dallas 2004, pet. ref'd). Accordingly, appellant has no right to raise a claim of ineffective assistance of counsel in a Chapter 64 proceeding. Id. Even if appellant could raise a claim of ineffective assistance arising from a proceeding under Chapter 64, to prevail on his claims appellant would first have to prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. See Bell v. State, 90 S.W.3d 301, 307 (Tex.Crim.App. 2002) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). He would then have to show that this deficient performance prejudiced his defense. Bell, 90 S.W.3d at 307. Nothing in the record shows that, under the facts and circumstances of this case, appellant's counsel could have filed a legally sufficient motion for post-conviction DNA testing. We overrule appellant's sixth issue. We affirm the trial court's orders denying appellant's motions for post-conviction DNA testing.