Alonzo Diego Fuller v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed October 13, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-03-00093-CR

__________

   ALONZO DIEGO FULLER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. 12,265

O P I N I O N

This is an appeal from the trial court=s order denying Alonzo Diego Fuller=s motion for DNA testing pursuant to TEX. CODE CRIM. PRO. ANN. art. 64.01 (Vernon Pamph. Supp. 2004 - 2005). We affirm.

In 1991, a jury convicted appellant of aggravated sexual assault, found the enhancement allegations to be true, and assessed his punishment at confinement for 99 years. This court affirmed the conviction in Fuller v. State, 858 S.W.2d 528 (Tex.App. - Eastland 1993, pet=n ref=d). In 2002, appellant filed his motion for DNA testing alleging that the testing techniques developed after his conviction were more accurate than the testing available at the time of trial. Appellant contended that there was a substantial likelihood that, if the physical evidence from the trial were tested with the newer techniques, the results would exclude him as the perpetrator of the offense. The trial court denied the motion.

In his sole issue, appellant argues that the trial court erred because the physical evidence was destroyed in violation of TEX. CODE CRIM. PRO. ANN. art. 38.39 (Vernon 2005). Appellant contends that the destruction of the evidence violated his federal and state constitutional due process rights and prays that the case be remanded to the trial court with instructions to conduct a new trial.

Article 38.39 provides for the preservation of biological evidence and became effective on April 5, 2001. It is uncontroverted that the physical evidence was destroyed prior to the effective date of Article 38.39. Brown County District Clerk Jan Brown testified that the physical evidence was destroyed on February 27, 2001. Therefore, Article 38.39 is not applicable to the present case. See Watson v. State, 96 S.W.3d 497 (Tex.App. - Amarillo 2002, pet=n ref=d).

At the time in question, TEX. CODE CRIM. PRO. ANN. art. 2.21 (Vernon 2005) controlled the destruction of exhibits. Brown=s testimony that, on January 3, 2001, she mailed the required Article 2.21 notice to appellant=s counsel at trial was uncontroverted. Brown testified that she waited Aa little longer@ than required under Article 2.21 and that, when no response was received, she presented the order for the destruction of the exhibits to the trial court. The trial court signed the order, and the exhibits were destroyed.

Article 2.21 does not require that counsel receive the notice, only that the clerk of the trial court mail the notice to the Aattorney representing the defendant@ and wait 30 days for a response. The record before this court reflects that the requirements of Article 2.21 were met. As the Amarillo Court of Appeals noted in Watson, even if Article 38.39 did apply retroactively to this case, Article 38.39 does not provide for a new trial in the event its requirements are not met. Watson v. State, supra at 499-500. The sole issue is overruled.

The order of the trial court is affirmed.

PER CURIAM

October 13, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.