Morales, Ruben Loya v. The State of Texas--Appeal from 174th District Court of Harris County

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00308-CR

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RUBEN LOYA MORALES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 580265

O P I N I O N

On November 1, 1990, appellant was charged with a once-enhanced felony offense of aggravated sexual assault. Appellant pled no contest to the aggravated sexual assault charge and the trial court assessed his punishment at 20 years confinement. In September 2001, appellant filed a motion for post-conviction DNA testing pursuant to the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 64.01 64.05 (Vernon Supp. 2002). The convicting court concluded there was no evidence to test and denied appellant s motion. Appellant appeals the convicting court s denial of his motion for post-conviction DNA testing allowed by chapter 64 of the Texas Code of Criminal Procedure.

Background

Appellant s affidavit states that, after his arrest, Houston Police Department investigators took blood, semen, and pubic hair samples from him. Appellant states that he was never informed whether a rape kit was taken as evidence, but believes that one was taken and is still in the State s possession. In its response, the State included an affidavit from K.L. McGinnis of the Houston Police Department and an evidence record as proof that the evidence in appellant s case was destroyed on June 3, 1996 and May 29, 1998. Also attached was the affidavit of Jim Bolding of the Houston Police Department Crime Lab, stating that there was no evidence in the Crime Lab s possession related to this case. Appellant did not request a hearing on his post-conviction DNA motion, and the convicting court filed its written order denying appellant s motion.

Discussion

Post Conviction DNA Hearing

In his first four points of error, appellant contends that the convicting court violated his federal and state constitutional rights, (1) to due process by disposing of his motion for post-conviction DNA testing in his absence and (2) to confrontation and cross-examination of witnesses by disposing of the final hearing through affidavits.

Appellant s argument presumes that Chapter 64 requires the trial court to conduct an evidentiary hearing to determine whether the evidence proposed to be tested exists. We have held that no evidentiary hearing is required and the State is not required to accompany its response with affidavits. Cravin v. State, No. ___, slip op. at ___ (Tex. App. Houston [1st Dist.] Dec. 12, 2002) (holding that the State is not required to accompany its response to appellant s motion with affidavits); see also Rivera v. State, No. 74,359, slip op. at 5 (Tex. Crim. App. Nov. 6, 2002) (holding that an evidentiary hearing is not required in determining whether DNA testing should be conducted).

Appellant relies on the Sixth Amendment, claiming he had a right to be present at a post-conviction DNA hearing and to cross-examine witnesses. In Cravin, we held that an applicant for a post-conviction DNA proceeding does not have a constitutional right to be present at a hearing nor does he have a right to cross examine witnesses. See Cravin, No. ___, slip op. at ___.

Appellant also contends that his absence from the proceeding violated his rights under the Due Process Clause. // As provided by chapter 64, appellant was represented by appointed counsel during the entire proceeding. See Tex. Code Crim. Proc. art. 64.01(c). The issue decided by the convicting court was that no evidence exists. We hold that there was nothing fundamentally unfair about the procedures implemented by the convicting court, and we further hold that the procedures did not violate appellant s constitutional rights. See Cravin, No. ___, slip op. at ___. We overrule appellant s first four points of error.

Hearsay Objection

In his fifth point of error, appellant claims that the court erred by admitting the State s affidavits in evidence against appellant during his post-conviction DNA motion hearing because they were hearsay. In Cravin, we held that an evidentiary hearing is not required when considering whether DNA evidence exists and that the State s written explanations need not be accompanied by affidavits. No. ___, slip op. at ___. We overrule appellant s fifth point of error.

Denial of Post-Conviction DNA Motion

In his sixth point of error, appellant contends that the convicting court erred in denying his motion for DNA testing because the State presented no formal evidence on appellant s post-trial DNA motion, and, consequently, the record was insufficient to establish that no such materials were in possession of the State.

This Court has held that it is not necessary for the State to file affidavits and that the convicting court can rule on appellant s motion based on the convicted person s motion and affidavit and the State s written response. See Cravin, No. ___, slip op. at ___. Although, the response itself is not in the record, it is clear from the Court s findings and order that the State s response provided an explanation to the court of why the State could not produce the evidence. It is also clear from the Court s findings and order that the State s response was sufficient for the court to find that no evidence existed. We overrule appellant s sixth point of error.

Conclusion

We affirm the convicting court s denial of appellant s post-conviction DNA motion.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Radack.

Do not publish. Tex. R. App. P. 47.