Nunez, Joe v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed June 12, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00685-CR

____________

JOE NUNEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

   Harris County, Texas

Trial Court Cause No. 496,692

 

M E M O R A N D U M O P I N I O N

Appellant, Joe Nunez, appeals from the trial court s denial of his post-conviction motion for DNA testing. See Tex. Code Crim. Proc. Art. 64.01-.05. Nunez was convicted of aggravated sexual assault in 1987 and received a life sentence.[1] Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1.

In his first four issues, appellant contends the trial court violated his state and federal constitutional rights (1) by conducting a final hearing on the motion without appellant being present and (2) in denying him the opportunity to confront and cross-examine witnesses during the hearing.[2] Arguments identical to the ones made by Nunez were rejected by our sister court in Cravin v. State, 95 S.W.3d 506 (Tex. App. Houston [1st Dist.] 2003, pet. ref d). Noting that an applicant for DNA testing is not entitled to any sort of hearing, see Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002), the Cravin court concluded that a Chapter 64 proceeding does not implicate rights under the respective confrontation clauses because it need not involve witnesses or accusations against the applicant. 95 S.W.3d. at 509-10. Instead, like a post-conviction habeas corpus proceeding, it is an independent, collateral inquiry into the validity of the conviction. Id.; see also Ex parte Mines, 26 S.W.3d 910, 914 15 (Tex. Crim. App. 2000) (finding no constitutional right to be present at post-conviction habeas corpus proceeding). The Cravin court further held that Chapter 64 proceedings do not violate the appellant s right to fundamentally fair due process. Id. at 510. We agree with our sister court s analysis of these arguments. Accordingly, we overrule appellant s first four issues.

In his fifth issue, appellant contends the court erred in considering affidavits attached to the State s response to the motion. But as noted, a Chapter 64 proceeding is not an evidentiary hearing, but instead a post-conviction proceeding that may be based on documents submitted to the court. Rivera, 89 S.W.3d at 58; Cravin, 95 S.W.2d at 511. The statute specifically contemplates submission based on affidavits from the applicant and a written response from the State. See Tex. Code Crim. Proc. art. 64.01(a), 64.02(2)(B). The affidavits were a part of the State s required written response and the court did not err in considering them. Accordingly, we overrule appellant s fifth issue.

In his sixth issue, appellant contends the trial court erred in denying his motion for DNA testing. The trial court expressly found that appellant failed to show evidence still existed and was in a condition making DNA testing possible. See id. art. 64.03(a)(1)(A)(i). The State asserted the evidence from appellant s case had been destroyed, and attached affidavits from the Harris County District Clerk s Office, the Pasadena Police Department (PPD) Crime Lab, the PPD Property Room, and the Harris County Medical Examiner s Office demonstrating that each either possessed no evidence relating to the case or had destroyed the evidence years before.

Appellant contends the State failed to show whether other law enforcement agencies in Harris County might have come into possession of and still retain evidence related to the case.[3] The State s response explained that the evidence maintained in [the case] and in possession of the Pasadena Police Department were [sic] destroyed on October 1, 1997. Absent an indication that an agency other than the PPD possessed evidence in the case at any time, the State s general response was sufficient. The State was not required to obtain affidavits from every criminal justice department in the county as to criminal investigations in which they were not involved.

Furthermore, the trial court also found appellant failed to show by a preponderance of the evidence that a reasonable probability exists he would not have been prosecuted or convicted if exculpatory results had been obtained. See Tex. Code Crim. Proc. art. 64.03(a)(2).[4] Appellant does not challenge this finding on appeal. Accordingly, the court s ruling can be affirmed on this ground alone. See id.; Dinkins, 84 S.W.3d at 643.[5] Neither his motion nor his brief offers an explanation as to how any samples, if still in existence and tested, could prove his innocence.[6] See Rivera, 89 S.W.3d at 60 (finding exculpatory DNA evidence would not have shown probability of innocence in light of corroborated confession). We overrule appellant s sixth issue.

The judgment of the trial court is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed June 12, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] We affirmed appellant s conviction. See Nunez v. State, No. B14-88-00557-CR, 1989 WL 49086. (Tex. App. Houston [14th Dist.] May 11, 1989, pet. ref d) (not designated for publication).

[2] Citing U.S. Const. Amend. VI and XIV; Tex. Const. art. I, 10.

[3] Appellant states that it is the State s burden to show whether evidence is in existence or not. However, the statute does not place such a burden directly on the State, but only says that the trial court cannot order testing if it finds that evidence still exists and is in a testable condition. See Tex. Code Crim. Proc. art. 64.01(a)(1)(A)(i). However, the ultimate burden of bringing forward facts is on the applicant. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). In Dinkins, the court stated Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court erroneously determined that appellant failed to show the existence of evidence containing biological material that should be subjected to DNA testing. Id.

[4] The Court of Criminal Appeals has interpreted this section as requiring an applicant to prove a reasonable probability exists that exculpatory DNA tests will prove [his] innocence. Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002).

[5] In Dinkins, the court stated that a trial court is never required to grant a motion for DNA testing absent a showing of a reasonable probability the applicant would not have been prosecuted or convicted if exculpatory results had been obtained. 84 S.W.3d at 643.

[6] Appellant s trial revolved largely around the testimony of two eyewitnesses, including that of the victim. See Nunez, No. B14-88-00557-CR, 1989 WL 49086, at *1. There is no indication in the record before us that biologically testable evidence played any role in the prosecution s case.