Scott, Shern Eugene v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed August 16, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00612-CR

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SHERN EUGENE SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 772,667

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

Appellant Shern Eugene Scott appeals from the trial court=s order denying his motion for postconviction DNA testing.[1] Because identity was not and is not an issue, we conclude the trial court correctly denied the motion and affirm.

Background

In 1998, appellant was convicted of the felony offense of sexual assault.[2] At trial, he admitted to having sexual contact with the complainant, but contended the act was consensual.

In 2003, appellant filed a motion for postconviction DNA testing. In his motion, he requested testing of the fingernail scrapings taken from the complainant. He contended AIdentity was and is an issue in this case. While petitioner testified at trial that he had sexual intercourse with the complainant, he denied using physical force or violence during the act of consensual sexual intercourse.@ In the affidavit in support of his motion, appellant stated, AIdentity was an issue in my case. I did not compel the complainant to have sexual intercourse by using physical force and violence.@

The State submitted its response, and the trial court denied appellant=s motion. The trial court made the following findings:

3. The Court finds, based on the trial record, that [appellant] testified at trial that he had consensual sexual intercourse with the complainant and denied the use of force or violence during the instant offense.

. . . .

5. The Court, based upon [appellant=s] admission that he had sexual intercourse with the complainant, finds that identity was not and is not an issue in the instant cause.

6. The Court further finds that [appellant] fails to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results were obtained through DNA testing.

Discussion

In a single issue, appellant challenges the trial court=s denial of his motion for postconviction DNA testing. We review a trial court=s decision to deny a motion for postconviction 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.

The version of Texas Penal Code article 64.03 in effect when appellant filed his motion provided a court could order forensic testing of DNA evidence only if the court found (1) evidence, which has been subjected to a sufficient chain of custody to establish its integrity, exists in a condition making DNA testing possible; (2) Aidentity was or is an issue in the case@; and (3) Aa reasonable probability exists that [the defendant] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.@ Act of April 3, 2001, 77th Leg., R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2, 3 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004B05)). 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. See Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).

Appellant contends the trial court erred in finding identity was not and is not an issue in the case. Appellant argues, AAppellant alleged the sexual intercourse was not by use of force, yet the state has fingernail scrapings evidence against Appellant. The fingernail scrapings well establishes [sic] that the sexual assault was of a violent nature, therefore, identity is definitely an issue in this case.@ He reasons that, after he had sexual intercourse with the complainant, Athe forceful attacker could have come in on complainant. Identity is a crucial issue in this case.@

Thus, appellant is attempting to use future DNA testing results to raise an issue of identity. Identity, however, must be in question without considering the possible results of DNA testing. See Bell, 90 S.W.3d at 308 (stating, AChapter 64 requires that identity >was or is= an issue, not that future DNA testing could raise the issue@).

Moreover, even if results of tests on the fingernail scrapings would show a second person had violent intercourse with the complainant, this fact is irrelevant to appellant=s defense of having had consensual intercourse with the complainant. Consistent with Bell, this court and others have upheld the denial of postconviction DNA testing when the defendant admitted to sexual intercourse, but contended it was consensual. See, e.g., Lopez v. State, No. 14-03-00871-CR, 2004 WL 503323, at *2 (Tex. App.CHouston [14th Dist.] Mar. 16, 2004, pet. ref=d) (per curiam) (not designated for publication); In re Crayton, No. 03-04-00217-CR, 2004 WL 2745954, at *1(Tex. App.CAustin Dec. 2, 2004, no pet.) (not designated for publication); Arkansas v. State, No. 05-04-00101-CR, 2004 WL 2569389, at *1 (Tex. App.CDallas Nov. 12, 2004, pet. ref=d) (not designated for publication).

We overrule appellant=s sole issue and affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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

[1] See Act of Apr. 3, 2001, 77th Leg., R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2, 2-4 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. arts. 64.01B.05 (Vernon Supp. 2004-05)). Appellant filed his motion on July 18, 2003. Although article 64 was amended in 2003, this appeal is governed by the 2001 law. See Act of Apr. 25, 2003, 78th Leg., R.S., ch. 13, '' 8-9, 2003 Tex. Gen. Laws 16, 17 (providing that former law governs motions for DNA testing filed before September 1, 2003).

[2] His appeal from his conviction was dismissed on his own motion. See Scott v. State, No. 14-98-00762-CR, 1999 WL 233357 (Tex. App.CHouston [14th Dist.] Apr. 22, 1999, no pet.) (not designated for publication).