Opinion
No. 14-07-00052-CR
Memorandum Opinion filed September 25, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas Trial Court Cause No. 356615.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Appellant, John Patrick Winters, challenges the trial court's order denying his motion for post-conviction DNA testing. In two issues, appellant contends the trial court violated his right to due process under the federal and state constitutions by denying his right to confront and cross-examine witnesses at a post-trial DNA motion hearing. All dispositive issues are clearly settled in law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4. On May 18, 1982, appellant was charged with aggravated rape. He pleaded guilty to attempted rape, and the trial court sentenced him to probation for a term of six years. After failing to abide by the terms of his probation, appellant pleaded true to the State's motion to adjudicate guilt. The trial court assessed punishment of four years' incarceration. No direct appeal was taken. Subsequently, appellant filed a motion seeking post-conviction DNA testing under article 64 of the Texas Code of Criminal Procedure. Relying on the affidavits of K.L. McGinnis, Property and Evidence Records Custodian for the Houston Police Department, Reidun Hilleman, Property and Evidence Records Custodian for the Houston Police Department Crime Lab, and Melchora Vasquez, Exhibits Clerk for the Harris County District Clerk's Office, the trial court found that no evidence existed to be tested and denied appellant's motion. Appellant complains the trial court violated his due process rights under the federal and state constitutions because he was denied the opportunity to confront and cross-examine the affiants. However, appellant failed to preserve error on this complaint. Generally, to preserve a complaint for appellate review, a party must have presented the trial court with a timely request, objection, or motion stating the specific grounds for the ruling sought. TEX. R. APP. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 88-89 (Tex.Crim.App. 1996). Even constitutional error may be waived without proper preservation. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000) (ruling failure to specifically object under the Confrontation Clause at trial waives the argument on appeal); see also Briggs v. State, 789 S.W.2d 918, 924 (Tex.Crim.App. 1990) (holding failure to object at trial waives any claim on appeal that admission of videotape evidence violated appellant's rights of confrontation and due process). In this case, there is no indication appellant objected to the affidavits on the grounds complained of, or requested an opportunity to cross-examine the affiants. The appellate record does not indicate whether the trial court held a hearing on appellant's motion or, if the trial court did hold a hearing, whether appellant was present at the hearing. However, after the trial court's ruling, appellant did not file any motion raising his constitutional complaints. Therefore, appellant waived his complaints. See Briggs, 789 S.W.2d at 924. Accordingly, the judgment of the trial court is affirmed.