Davis, Richard v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Memorandum Opinion filed August 28, 2003

Affirmed and Memorandum Opinion filed August 28, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00741-CR

____________

RICHARD DAVIS, Appellant

V.

THE STATE OF  TEXAS, Appellee

_____________________________________________

On Appeal from the 182nd District Court

Harris  County,  Texas

Trial Court Cause No. 706,396

_____________________________________________

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

Appellant Richard Davis challenges the trial court=s denial of his motion for post-conviction DNA testing. We affirm.

I. Factual and Procedural Background

Appellant was convicted of aggravated sexual assault of a child in 1996, after pleading nolo contendere in cause number 706,396 in the 182nd District Court of Harris County, Texas. The trial court sentenced appellant to eight years confinement in the

class=Section2>

Texas Department of Criminal Justice, Institutional Division. In December of 2001, appellant filed a pro se motion for post-conviction DNA testing in the trial court. After the trial court appointed counsel, appellant filed a second motion for post-conviction DNA testing in February of 2002. The trial court denied appellant=s motion for post-conviction DNA testing, and appellant now challenges that judgment.

II. Issues Presented

Appellant presents the following issues for review:

(1) Did the trial court violate appellant=s due process and confrontation rights under the Texas Constitution when it conducted a post-conviction DNA hearing in appellant=s absence?

(2) Did the trial court violate appellant=s due process rights under the Texas Constitution by not holding an evidentiary hearing on his motion for post-conviction DNA testing?

(3) Did the trial court reversibly err by denying appellant=s motion for DNA testing under article 64.03 of the Texas Code of Criminal Procedure?

III. Analysis and Discussion

  A. Do the due course of law and confrontation provisions of the  Texas  Constitution require a defendant s presence at a post-conviction DNA hearing?

In his first issue, appellant argues the trial court violated his confrontation clause and due process rights under the Texas Constitution by holding a post-conviction DNA hearing in his absence. See Tex. Const. art. 1, '' 10, 19. Appellant maintains that article 33.03 of the Texas Code of Criminal Procedure is dispositive of his first issue. Article 33.03 is based on the Confrontation Clause and provides that a defendant must be personally present at trial in all felony prosecutions and in all misdemeanor prosecutions when the punishment may include a jail sentence. See Tex. Code Crim. Proc. art. 33.03; Garcia v. State, 818 S.W.2d 756, 762B63 (Tex. Crim. App. 1991).

By their plain language, the Texas Confrontation Clause and article 33.03 of the Code of Criminal Procedure apply to criminal prosecutions. See Tex. Const. art. 1, '10; Tex. Code Crim. Proc. art. 33.03. Unlike a criminal prosecution, a post-conviction

class=Section3>

DNA hearing does not involve accusations against a criminal defendant. Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Accordingly, appellant does not have a constitutional right to Aconfront his accusers@ at a post-conviction DNA hearing because it is a proceeding appellant initiated himself. Id. Because it was not fundamentally unfair for the trial court to hold the post-conviction hearing in appellant=s absence when appellant was represented by counsel at the hearing, we find no violation of appellant=s due process rights. See Cravin, 95 S.W.3d at 511. For these reasons, we overrule appellant=s first issue.

B. Did the trial court reversibly err by not holding an evidentiary hearing on appellant s motion for post-conviction DNA testing?

In his second issue, appellant argues the trial court=s failure to conduct an evidentiary hearing with live witness testimony violated his due process rights under the Texas Constitution.[1] Appellant contends he needed an evidentiary hearing with live witness testimony to meet his burden of proving by a preponderance of the evidence that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. art. 64.03 (a)(2)(A).

The record shows that the trial court held a hearing on appellant=s motion for post-conviction DNA testing. At the hearing, appellant=s counsel asked the trial court to take judicial notice of the contents of the case file, appellant=s original and amended motions for DNA testing, and supporting affidavits. Appellant=s counsel then rested. Nothing in the record suggests that the trial court prevented appellant from presenting witness testimony or other evidence at the hearing. Nor is there any suggestion in the record that appellant requested an evidentiary hearing or informed the trial court of his complaint that he allegedly was not given an opportunity to present witness testimony. Because

class=Section4>

appellant did not make the complaint he now urges in the trial court, we find appellant has not preserved the alleged error for appellate review. See Tex. R. App. P. 33.1(a) (providing a complaint generally must be made by a timely request, objection, or motion to the trial court to preserve error for appellate review); Saldano v. State, 70 S.W.3d 873, 886B87 (Tex. Crim. App. 2002) (stating that even constitutional complaints may be waived by failure to timely assert them in the trial court); Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995) (stating due process rights are usually forfeitable by inaction); Ex parte Alakayi, 102 S.W.3d 426, 434 (Tex. App.CHouston [14th Dist.] 2003, pet. filed) (finding failure to preserve due process complaint concerning trial court=s alleged failure to give hearing).[2] Accordingly, we overrule appellant s second issue.

  C. Did the trial court reversibly err by denying appellant s motion for DNA testing under article 64.03 of the  Texas  Code of Criminal Procedure?

In his third issue, appellant maintains that the trial court=s denial of his motion for post-conviction DNA testing was erroneous because he satisfied the elements of article 64.03 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 64.03.

A convicted person may only file a motion for DNA testing of material that was in the possession of the State during the trial of the underlying offense. Tex. Code Crim. Proc. art. 64.01. A trial court must order forensic DNA testing when it finds, inter alia, the following elements are satisfied:

(1) evidence still exists in a condition making DNA testing possible;

(2) the evidence has been subjected to a chain of custody sufficient to establish that the evidence has not been substituted, tampered with, replaced, or altered in any material respect; and

(3) the convicted person established by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.

See Tex. Code Crim. Proc. art. 64.03.

We review a trial court=s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Accordingly, we afford almost total deference to the trial court=s determination of issues of historical fact and application-of-law-to-fact issues that turn on an evaluation of credibility and demeanor. Id. However, we review de novo the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id.

Appellant=s motion for DNA testing was prepared by counsel and closely tracked the language of Chapter 64 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 64.01, et seq. The motion requested DNA testing of Aany and all biological matter and materials which were collected and obtained and retained for trial purposes.@ In the accompanying affidavit, appellant was required to provide sworn statements of fact in support of the motion. See Tex. Code Crim. Proc. art. 64.01(a). In his affidavit, appellant asserts evidence was obtained in the underlying case, from a sexual activity kit, that included A>swab= vaginal smear and hair from@ the complainant.

In support of its response in opposition to appellant=s motion, the State submitted three affidavits. The first, an affidavit from the custodian of records for the Houston Police Department (HPD) Property Room, stated that the Property Room was not in possession of any property or evidence relating to the underlying offense. The second affidavit, from the custodian of records for the HPD Crime Lab, stated that the Crime Lab was not in possession of any evidence relating to the underlying offense at the time of making the affidavit, and had not previously received evidence in the case. The third affidavit, from the Exhibits Clerk of the Harris County District Clerk=s office, stated that the Harris County District Clerk=s office was not in possession of evidence pertaining to the underlying case. At the hearing on appellant=s motion for DNA testing, appellant=s counsel told the trial court that, based on his review and investigation of appellant=s case,

class=Section5>

he was satisfied there was not biological material or other physical evidence which could be subjected to DNA testing.

We conclude the affidavits filed by the State in its response were sufficient to enable the trial court to conclude that no evidence exists that could have been subjected to DNA testing under article 64.03. See Tex. Code Crim. Proc. art. 64.03(a); Cravin, 95 S.W.3d at 511. Assuming arguendo the evidence identified in appellant=s affidavit exists, the record does not show an adequate chain of custody. See Tex. Code Crim. Proc. art. 64.03(a). Finally, the trial court correctly concluded that appellant failed to prove by a preponderance of the evidence that a reasonable probability exists that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. The record does not establish a reasonable probability that the absence of appellant=s DNA on the alleged evidence would prove his innocence. See Rivera, 89 S.W.3d at 60. The underlying offense allegedly occurred in April of 1995, but the complainant was not examined until late September of the same year. Accordingly, the trial court correctly denied appellant=s motion for post-conviction DNA testing. We overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed August 28, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

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

[1] Although appellant characterizes his second issue as a due process complaint, he cites to the Confrontation Clause of the Texas Constitution. See Tex. Const. art. 1, ' 10. This disparity is not relevant to our disposition of this issue.

[2] To the extent these cases address due process under the United States Constitution, they remain applicable to appellant=s complaint under the Texas Constitution because the Texas due course of law provision has not been held to provide greater protection than federal due process. See Rodriguez v. State, 21 S.W.3d 562, 568 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); Cravin, 95 S.W.3d at 511 n.3.