Hall, William A. v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmedand Memorandum Opinion filed February 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00762-CR

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WILLIAM ARNETTE HALL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 443,468

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 four issues in which he challenges his original conviction and contends article 64.03 of the Texas Code of Criminal Procedure impermissibly shifts the burden of proof to the convicted person. We affirm.

Background

Appellant entered a plea of not guilty before a jury to the offense of sexual assault. He was convicted on May 12, 1986, and the court assessed punishment at imprisonment for life. On July 30, 1987, this court affirmed appellant=s conviction, but remanded to the trial court for a new punishment hearing. Hall v. State, 1987 WL 15049, No. B14-86-368-CR (Tex. App.CHouston [14th Dist.] 1987, no pet.). On remand, the trial court assessed life in prison. On April 6, 1989, this court affirmed appellant=s conviction and sentence. Hall v. State, 1989 WL 31758, No. C14-87-00933-CR (Tex. App.CHouston [14th Dist.] 1989, no pet.). On April 12, 2002, appellant filed a motion for DNA testing pursuant to article 64.03 of the Texas Code of Criminal Procedure. The State presented evidence that all evidence that could have been tested was destroyed on December 28, 1994. The trial court found appellant failed to meet the requirements of article 64.03(a)(2) of the Texas Code of Criminal Procedure and denied appellant=s motion.

Appellant filed a notice of appeal in this court challenging the trial court=s ruling. Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response in which he complains of irregularities in his original conviction and contends article 64.03 of the Texas Code of Criminal Procedure impermissibly shifts the burden of proof to the convicted person.

Original Conviction

Appellant raises several issues relating to his original conviction. Though he asserts the trial court erred in denying relief under his post conviction DNA motion, the substance of his argument concerns allegations he did not receive a fair trial because the prosecutor withheld exculpatory evidence. These issues are outside the scope of an appeal from post conviction DNA proceedings. Chapter 64 only authorizes the convicting court to order DNA testing. See Wolfe v. State, 120 S.W.3d 368, 371B72 (Tex. Crim. App. 2003) (discussing scope of appeals under article 64.05). To the extent appellant challenges his original conviction, his issues are dismissed.

Article 64.03

In his remaining issues, appellant contends article 64.03 of the Texas Code of Criminal Procedure impermissibly shifts the burden of proof from the State to the convicted person. As in a post conviction writ of habeas corpus proceeding, an applicant for post conviction DNA testing does not enjoy a presumption of innocence; therefore, he has the burden to establish facts that would entitle him to relief. See Ex parte Fierro, 934 S.W.2d 370, 379 (Tex. Crim. App. 1996) (applicant for state post conviction habeas corpus has the burden to establish every fact which if true would entitle him to relief); see also Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (post-conviction DNA applicant not entitled to presumption of innocence). Therefore, appellant has the burden of proof to establish facts that establish entitlement to post-conviction DNA testing. Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed February 10, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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