Hutson, Wilbert Ray v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Memorandum Opinion filed April 28, 2005

 Affirmed and Memorandum Opinion filed April 28, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00414-CR

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WILBERT RAY HUTSON, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 875,569

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

Appellant, Wilbert Ray Hutson, appeals from the trial court=s denial of his motion for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01B.05 (Vernon Supp. 2004B05). Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

I. Background

Appellant was convicted of the offense of aggravated assault with a deadly weapon, and the trial court assessed punishment at ten years= confinement. On direct appeal, this court affirmed appellant=s conviction. Appellant subsequently filed a motion for post-conviction forensic testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure, seeking DNA testing of the box cutter allegedly used to commit the aggravated assault.[1] In its response to appellant=s motion, the State contended the trial court should deny testing because appellant failed to show that biological evidence still exists or that the evidence is in a condition making DNA testing possible.[2]

On April 12, 2004, the trial court held a post-conviction DNA hearing and denied appellant=s motion for DNA testing. The trial court adopted the State=s proposed findings of fact and conclusions of law, finding, in part, that appellant failed to show that evidence still exists and is in a condition making DNA testing possible. Although appellant was represented by appointed counsel at the post-conviction DNA hearing, appellant waived his right to counsel on appeal and filed a pro se brief challenging the trial court=s denial of his motion.

II. Abatement of Appeal

In his brief, appellant appears to argue that this appeal should be abated because counsel, who previously represented appellant on direct appeal from his original conviction, failed to deliver an Anders brief to appellant for the current appeal. See Hawkins v. State, 515 S.W.2d 275, 276 (Tex. Crim. App. 1974) (abating appeal because the record failed to show that the appellant=s counsel had delivered an Anders brief to the appellant, or the appellant had ample opportunity to review the appellate record in light of the brief). However, counsel from appellant=s direct appeal of his conviction no longer represents appellant, and therefore, was not required to deliver an Anders brief to appellant. Moreover, the record clearly reflects that appellant voluntarily waived his right to counsel on this appeal and elected to file a pro se brief. Accordingly, we find no merit in appellant=s assertion that this appeal should be abated.[3]

III. Collateral Attack on Conviction

Appellant makes numerous arguments challenging his original conviction for aggravated assault.[4] However, we do not have jurisdiction to address these arguments in this appeal.

In a criminal case, the right to appeal is Aa substantive right determined solely within the province of the Legislature.@ Sanchez v. State, 112 S.W.3d 311, 311 (Tex. App.CCorpus Christi 2003, no pet.) (per curiam) (citing Lyon v. State, 872 S.W.2d 732, 734 (Tex. Crim. App. 1994)); see also Bayless v. State, 91 S.W.3d 801, 805 (Tex. Crim. App. 2002) (Aa defendant=s right of appeal is a statutorily created right@). Appellate courts do not have jurisdiction over criminal appeals where that jurisdiction has not been expressly granted to them. See Apolinar v. State, 820 S.W.2d 792, 794 (Tex. Crim. App. 1991); Wright v. State, 969 S.W.2d 588, 589 (Tex. App.CDallas 1998, no pet.); Fry v. State, 112 S.W.3d 611, 612B613 (Tex. App.CFort Worth 2003, pet. ref=d) (en banc). Chapter 64 of the Texas Code of Criminal Procedure confers jurisdiction on this court to review a trial court=s order regarding post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.05 (providing that in non-capital cases, an appeal under this chapter is to a court of appeals). The legislature recently broadened the scope of appeals under Chapter 64 to include issues pertaining to all articles of Chapter 64. See Wolfe v. State, 120 S.W.3d 368, 371B72 (Tex. Crim. App. 2003) (explaining that article 64.05 previously only permitted an appeal Aof a finding under article 64.03 or 64.04,@ but that a 2003 amendment now permits an appeal Aunder this chapter@). However, appellant=s arguments attacking his original conviction do not pertain to any of the articles in Chapter 64, and thus, we have no jurisdiction to consider them in this appeal. Therefore, we dismiss for lack of jurisdiction all of appellant=s arguments challenging his original conviction.

IV. Denial of Motion for DNA Testing

Although appellant filed this appeal from the trial court=s denial of his motion for DNA testing, appellant has presented no arguments in his brief concerning why the trial court=s ruling on the motion may have been improper. Nonetheless we will address the propriety of the trial court=s denial of appellant=s motion.

In reviewing the trial court=s decision on a motion for post-conviction DNA testing, we apply a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the trial court=s determination of historical fact issues and application of law to facts that turn on credibility and demeanor. Id. We review de novo other application of law to fact issues. Id.

Before granting post-conviction DNA testing, the trial court must first determine whether (a) testable biological material exists in a condition making forensic DNA testing possible and has not been altered or tampered with in any material respect, and (b) identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A) & (B). In this case, the State submitted affidavits from relevant authorities averring that the Harris County Clerk=s Office, the Houston Police Department crime lab, the Houston Police Department property room, and the Harris County Sheriff=s Office property room do not have custody of any property or evidence related to appellant=s case. Moreover, appellant introduced no evidence to show that testable DNA evidence exists.

After reviewing the evidence submitted at the post-conviction DNA hearing, we find that the record supports the trial court=s determination that no evidence containing biological material capable of DNA testing exists. Deferring to the trial court=s finding that this evidence does not exist, we hold that the trial court properly denied appellant=s motion for post-conviction DNA testing. See Lopez v. State, 114 S.W.3d 711, 717 (Tex. App.CCorpus Christi 2003, no pet.) (holding that convicting court properly denied appellant=s motion for post-conviction DNA testing because record supported finding that no evidence containing biological material capable of DNA testing existed).[5]

V. Preservation of Evidence

Appellant appears to argue that the State violated article 38.39 of the Texas Code of Criminal Procedure by failing to preserve evidence containing biological material. See Tex. Code Crim. Proc. Ann. art. 38.39 (Vernon Supp. 2004B05) (providing guidelines for preservation of biological evidence). However, article 38.39 does not provide for any relief by the lower court, nor does it authorize an appeal to a court of appeals. Chavez v. State, 132 S.W.3d 509, 510 (Tex. AppCHouston [1st Dist.] 2004, no pet.); Watson v. State, 96 S.W.3d 497, 500 (Tex. App.CAmarillo 2002, pet. ref=d). Therefore, we do not have jurisdiction to consider appellant=s argument in this appeal.[6]

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed April 28, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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

[1] Appellant s motion is not part of the appellate record.

[2] At the post-conviction DNA hearing, the State further argued that appellant s motion for DNA testing should be denied because appellant would have still been prosecuted and convicted if the evidence had been tested. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A) (providing that a convicted person must prove by a preponderance of the evidence that a reasonable probability existed that he would not have been convicted if exculpatory results had been obtained through DNA testing).

[3] Appellant also argues that the trial court erred by failing to appoint counsel for the post-conviction DNA hearing. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (providing that a convicted person is entitled to counsel during a proceeding under Chapter 64 of the Texas Code of Criminal Procedure). However, the record plainly reflects that appellant was represented by appointed counsel at the hearing.

[4] Appellant does not separately brief any of the issues that he raises on appeal. However, appellant generally raises the following arguments relating to his conviction: (1) the evidence admitted at trial was insufficient to support his conviction; (2) appellant=s trial counsel was prohibited from cross-examining the State s witnesses to expose their bias or motive for testifying; (3) appellant s trial counsel was ineffective; (4) the prosecutor suppressed evidence and refused to subpoena witnesses who could exonerate appellant; (5) appellant s conviction was based upon perjured testimony; (6) the prosecutor suborned perjury; and (7) the prosecutor engaged in improper jury argument.

[5] Given our disposition of this issue, we need not address the State s additional arguments as to why the trial court properly denied appellant s motion for DNA testing.

[6] To the extent appellant contends that the State=s failure to preserve the evidence violated his constitutional right to due process of law, we also lack jurisdiction to consider his argument. See Chavez, 132 S.W.3d at 510 (holding that appellant=s claim that State=s destruction of evidence violated his constitutional right to due process of law amounted to a request for habeas relief, over which a court of appeals does not have jurisdiction in a felony case).