Harrison, Leon v. The State of Texas--Appeal from 230th District Court of Harris County

Affirmed and Memorandum Opinion filed December 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01239-CR

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LEON HARRISON, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 635,921

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

Leon Harrison appeals the trial court s denial of his post-conviction[1] motion for DNA testing on the grounds that: (1) his state and federal constitutional due process rights were violated; and (2) the State failed to establish its lack of possession of biological materials. We affirm.

Appellant s first two points of error argue that his state and federal due process rights were violated because he was denied an opportunity to confront and cross-examine the State s witnesses[2] during his post-trial DNA motion hearing. However, nothing in the record shows that appellant requested to cross-examine these witnesses or otherwise brought this complaint to the attention of the trial court.[3] Therefore, appellant s first two points of error present nothing for our review and are overruled.

Appellant s third issue asserts the trial court erred in denying his motion for post-conviction DNA testing because the State failed to sustain its burden to establish that no biological material that could be tested was in any law enforcement agency s possession. However, two of the State s affidavits and the trial court findings of fact state that such evidence did exist. Therefore, the lack of such evidence was not a basis for the trial court s ruling.

Rather, the trial court s findings of fact and conclusions of law indicate that it denied appellant s request for DNA testing because he failed to show that: (1) identity was an issue in the case; and (2) a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.[4] Because appellant s third point of error has not challenged the grounds upon which the trial court s ruling was based, it fails to show error in denying his motion for post-conviction DNA testing. Accordingly, appellant s third point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 9, 2003.

Panel consists of Justices Edelman, Frost, and Guzman.

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

[1] Appellant pled guilty to second degree sexual assault and was sentenced to two years confinement.

[2] The State offered affidavits from the District Clerk s exhibit clerk, the Houston Police Department Crime Lab s custodian of records, and the Houston Police Department s property room custodian.

[3] See Tex. R. App. P. 33.1(a) (to be preserved for appellate review, a complaint generally must be made by a timely request, objection, or motion to the trial court); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (finding that appellant s failure to object under the Confrontation Clause waived that argument on appeal).

[4] See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (a)(2)(A) (Vernon Supp. 2004) (allowing a convicting court to order DNA testing only if, among other things, the court finds that identity was an issue in the case and the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing); Dinkins v. State 84 S.W.3d 639, 643 (Tex. Crim. App. 2002) (noting that a trial court is never required to grant a convicted person s request for testing absent such a showing).