Affirmed and Memorandum Opinion filed April 8, 2004
Gaddy, Kenneth Michael v. The State of Texas--Appeal from 174th District Court of Harris County
Affirmed and Memorandum Opinion filed April 8, 2004.
Fourteenth Court of Appeals
KENNETH MICHAEL GADDY, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 489,359
M E M O R A N D U M O P I N I O N
This is an appeal from the denial of appellant=s post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings six issues challenging the denial of his motion and the constitutionality of the proceedings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.
In November of 2001, appellant filed a post-conviction motion requesting, inter alia, DNA testing of bloody clothing in the State=s possession from his 1988 trial and conviction for murder. The trial court appointed counsel to represent appellant. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant=s motion and provided affidavits and supporting documentation of the condition of the evidence. The trial court made findings that appellant failed to establish evidence still exists in a condition making DNA testing possible or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.03(a)(1)(A)(i), 64.03(a)(2)(A) (Vernon Supp. 2004). Accordingly, the court denied testing by written order containing its findings and conclusions signed August 25, 2003. Appellant filed a timely, written notice of appeal.
Standard of Review and Applicable Law
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 the application of law to the 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.
Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established:
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
Act of April 5, 2001, 77th Leg. R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004)). By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
In his first four issues, appellant argues the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution by (1) conducting a final hearing on the motion without his presence, and (2) denying him the opportunity to confront and cross-examine witnesses.
The First Court of Appeals considered the same issues in Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d), and held them to be without merit. We have followed the reasoning of our sister court in addressing these issues. See Thompson v. State, 123S.W.3rd 781, 784 (Tex. App.C Houston [14th Dist.] 2003, no pet.) We hold appellant=s claims are groundless and overrule issues one through four.
In his fifth issue, appellant argues that the trial court erred in considering inadmissible hearsay affidavits submitted by the State. No hearing is required before a trial court makes its determination under article 64.03 whether to order forensic DNA testing. See Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002). The statute specifically contemplates a post-conviction proceeding with submission of affidavits from the applicant and a written response from the State, rather than an evidentiary hearing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), 64.02(2)(B)(Vernon Supp. 2004). Moreover, the State is not required to file affidavits with its response to an applicant=s motion for DNA testing; the court may reach a decision based solely on the convicted person=s motion and affidavit and the State=s response. Cravin, 95 S.W.3d at 509. Therefore, the trial court=s decision need not be based on the State=s affidavits. We overrule appellant=s fifth issue.
In his sixth issue, appellant contends the trial court erred in denying his motion for DNA testing because the State failed to establish that the requested materials were no longer in its possession. Upon the filing of an article 64.01 motion, the trial court is required to provide the State with a copy of the motion. See Tex. Code Crim. Proc. Ann. art. 64.02(1). (Vernon Supp. 2004). The State then is required to either deliver the evidence to the court or explain in writing why it cannot deliver the evidence to the court. Id. art. 64.02(2); Cravin, 95 S.W.3d at 509. In response to appellant=s motion, the State explained that the evidence from appellant=s trial had been destroyed. The State provided affidavits from the medical examiner=s office, the Harris County District Clerk=s Office and the Houston Police Department Crime Lab and the Department=s Property Room, stating that the requested materials were not in their possession. The District Clerk=s office provided an affidavit from its Exhibit Clerk stating that her office had destroyed the evidence in its possession related to appellant=s case in 1999. The HPD property and records custodian also stated that the evidence had been destroyed.
The trial court is entitled to make its determination based solely upon appellant=s motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Appellant bears the burden of production or persuasion at each stage under Chapter 64. Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.CDallas 2003, no pet.). Appellant=s motion and affidavit failed to offer any relevant evidence or argument to support its contentions that evidence still exists. A court may order post-conviction DNA testing only if the court finds that the evidence still exists in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2004). The court found appellant failed to meet his burden to establish this requirement. See Cravin, 95 S.W.3d at 510. We hold the trial court did not err in so finding and overrule appellant=s sixth issue.
Accordingly, the judgment of the trial court is affirmed.
Judgment rendered and Memorandum Opinion filed April 8, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish CTex. R. App. P.47.2(b).
 This court affirmed appellant=s conviction. See Gaddy v. State, No.14-88-00550-CR (Tex. App.CHouston [14th Dist.] July 13, 1989, pet. ref=d) (not designated for publication).
 The 2003 amendment to article 64.03(a)(2) applies to motions filed on or after September 1, 2003, and are inapplicable here. All subsequent citations will be to the statute in effect at the time appellant=s motion was filed.
 Moreover, appellant offered no evidence tending to show a reasonable probability that exculpatory DNA testing would prove his innocence. See Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002). The trial court=s decision could be affirmed on this basis alone.