Opinion
No. 05-04-00270-CR
Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F81-04933-R. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
James Lee Woodward appeals the denial of his motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2004-05). In two points of error he contends the trial court erred in not conducting a hearing concerning the chain of custody of the biological evidence from his original trial, and that his due process rights were violated by the State's failure to disclose material evidence. The background of the case is well known to the parties; thus, we do not discuss it here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's order. A jury convicted Woodward of murder in 1981 and the trial court sentenced him to life imprisonment. In 2001, Woodward filed a motion for DNA testing. The State filed a written response indicating that it could not locate any biological evidence from the case and requested the motion be denied. See Tex. Code Crim. Proc. Ann. art. 64.02(2)(B). The trial court denied the motion for DNA testing without conducting a hearing. When reviewing the trial judge's decision to deny a post-conviction DNA motion, we apply the bifurcated standard of review set forth 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 overrule Woodward's first point of error because nothing in article 64.03 requires a hearing of any sort before the trial court determines whether a defendant is entitled to DNA testing. Rivera, 89 S.W.3d at 58-59. There is no right to a hearing until after the evidence has been tested. Tex. Code Crim. Proc. Ann. art. 64.04. Further, Woodward never requested a hearing to determine the chain of custody of the biological evidence. See Shannon v. State, 116 S.W.3d 52, 54-55 (Tex.Crim.App. 2003) (defendant forfeited any right to complain of lack of hearing where he never requested one). We deny Woodward's second point of error because, under the version of chapter 64 in effect when Woodward filed his motion, we have jurisdiction to review only the trial court's findings under articles 64.03 and 64.04. See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2 § 2, 2001 Tex. Gen. Laws 2, 4 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.05 (Vernon Supp. 2004-05)); Wolfe v. State, 120 S.W.3d 368, 370-71 (Tex.Crim.App. 2003). Chapter 64 does not confer jurisdiction upon this Court to entertain collateral attacks on the trial court's judgment or to revisit matters that should have been raised on direct appeal. Lopez v. State, 114 S.W.3d 711, 714 (Tex.App.-Corpus Christi 2003, no pet.). Woodward's due process challenge under Brady v. Maryland, 373 U.S. 83 (1963), is not an appeal of a finding under chapter 64 and we have no jurisdiction to review this claim. We overrule Woodward's second point of error. We affirm the trial court's order.