Robert G. Hart, Jr. v. The State of Texas--Appeal from 263rd District Court of Harris County

MEMORANDUM OPINION
No. 04-03-00116-CR
Robert G. HART,
Appellant
v.
The STATE of Texas,
Appellee
From the 263rd Judicial District Court, Harris County, Texas
Trial Court No. 727757
Honorable Jim Wallace, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 4, 2004

AFFIRMED

In three issues, Robert G. Hart appeals the trial court's denial of his post-conviction motion for DNA testing. We affirm the trial court's order.

Background

On November 12, 1996, Hart was adjudicated guilty of committing the offense of attempted capital murder and was sentenced to life imprisonment. At trial, the evidence showed that Hart stabbed the victim in the course of robbing and sexually assaulting her. Hart v. State, No. 14-96-01400-CR, 1998 WL 429630, at *1 (Tex. App.--Houston [14th Dist.] July 30, 1998, no pet.) (not designated for publication). Testimony indicated that Hart's knife was a deadly weapon and that the victim would have died from loss of blood had she not received medical assistance. Id. After the jury assessed punishment against him, Hart told the jury, "The jury's verdict was fair. I deserve it. If I was a juror, I would have done the same thing. I am grateful that I will be in prison for the rest of my life because I will no longer have the chance to use drugs ever again. Drugs has [sic] destroyed my life. . . . [First name of victim], I am very, very sorry for what I had [sic] done to you." Id. at *2.

On July 19, 2002, Hart filed a motion for scientific testing of DNA evidence. The motion alleges that "a rape kit was performed on the complainant shortly after she reported the offenses; however, no DNA testing was performed and no DNA evidence was introduced at trial." The motion also maintains that Hart has "continuously maintained his innocence and is confident that DNA testing of the materials and evidence taken in the performance of the rape kit examination will reveal that [Hart]'s DNA is not present and that he did not commit any sexual assault or acts of indecency against" the victim. Attached to the motion was Hart's affidavit in which he affirms that "a rape kit was performed," "that the rape kit had the result of 'negative' and that there will not be any traces of my DNA within that test result," "that I did not sexually assault [the victim]," and "that if a re-examination of the same rape kit was conducted my DNA would not be found."

The State filed a response to Hart's motion, requesting that the trial court deny Hart's motion because (1) Hart failed to prove that identity was or is an issue in the case, (2) Hart failed to establish by a preponderance of the evidence that a reasonable probability exists that the defendant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing, and (3) Hart waived his right to DNA testing. Attached to the motion was the affidavit of Kaylynn Williford, the prosecuting attorney in Hart's trial. Williford affirms that Hart abandoned his request for DNA testing at trial:

In 1996, I prosecuted Robert Hart along with Mark Vinson on charges of attempted capital murder, cause number 727757, in the 263rd District Court of Harris County, Texas. During the investigation of the offense, police officers recovered blue jeans that Hart was wearing when he attacked the complainant, [name of complainant]. Prior to trial, Judge Jim Wallace ordered that DNA testing be conducted. Preliminary results indicated that DNA consistent with the complainant and Hart was identified on Hart's blue jeans. The defense subsequently abandoned their request for DNA testing.

There is no reporter's record of the hearing on Hart's motion. On November 21, 2002, the trial court entered findings of fact and conclusions of law. In Finding of Fact No. 12, the trial court found, based on the trial record, that

evidence was elicited at trial that the complainant was acquainted with the defendant because the defendant had lived next to the complainant in an apartment complex for four months; that the complainant gave the police the name of the defendant and a description of the defendant and the car he was driving at the scene of the instant offense; that the defendant's fingerprint was found on the complainant's answering machine at the scene of the instant offense; and, that the complainant also identified the defendant in a photo spread and in court.

In Finding of Fact No. 13, the trial court found, based on the trial record, that when the court asked Hart whether he had anything to say before the court pronounced sentence, Hart apologized to the complainant for what he did to her. The trial court also found, based on the affidavit of Williford, that prior to trial, the defense abandoned their request for DNA testing.

In its conclusions of law, the trial court denied Hart's request for DNA testing, because (1) identity was and is not an issue in the case, see Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004), and (2) Hart failed to establish by a preponderance of the evidence that "a reasonable probability exists that [Hart] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing," see id. art. 64.03(a)(2)(A). Hart appeals.

Discussion

To obtain DNA testing under chapter 64 of the Texas Code of Criminal Procedure, the court must find that (1) the evidence still exists and is in a condition making DNA testing possible and 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 (2) identity was or is an issue in the case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2004). Additionally, the convicted person must establish by a preponderance of the evidence that (1) the person would not have been convicted if exculpatory results had been obtained through DNA testing and (2) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Id. art. 64.03(a)(2).

In reviewing the trial court's decision, we employ the familiar bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997): we afford almost total deference to a trial court's determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).

According to Hart, the trial court erred in basing its determination that identity was not or is not an issue on his statements during the punishment phase of trial. After Hart received the verdict of jury on punishment but before he was sentenced by the trial court, the trial court asked Hart if he had anything to say. In response, Hart stated the following:

The jury's verdict was fair. I deserve it. If I was a juror, I would have done the same thing. I am grateful that I will be in prison for the rest of my life because I will no longer have the change to use drugs ever again. Drugs has [sic] destroyed my life. . . . [First name of victim], I am very, very sorry for what I had [sic] done to you.

Hart, 1998 WL 429630, at *2 (emphasis added). Hart argues that these statements made during punishment should not have been used by the trial court in determining whether identity was or is in issue. For support, Hart cites Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998), which, in part, overruled the DeGarmo doctrine. The DeGarmo doctrine states that a defendant waives any challenge to the sufficiency of the evidence when he admits guilt during the punishment stage of trial. DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985). Leday substantially limited the DeGarmo doctrine. Because certain due process and fundamental individual rights override the truth-finding function of a trial, the Leday court held that insofar as the DeGarmo doctrine estops a defendant from raising on appeal a violation of any of these guaranties, it cannot be justified on the ground that the verdict of guilt was correct. Leday, 983 S.W.2d at 725. Thus, the Leday court held that the appellant had not waived his right to appeal the trial court's decision to admit evidence that he argued was illegally seized. Id.

We agree with Hart that he has not waived his right to seek DNA testing by making the statements of guilt during sentencing. However, we disagree with Hart's assertion that the trial court could not consider those statements in making its determination of whether identity was or is in issue. Article 64.03(b) states that a "convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea." Tex Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2004) (emphasis added). Here, however, the trial court did not find identity was not or is not an issue solely on the basis of Hart's statements. The trial court also based its decision on the evidence at trial:

The Court finds, based on the trial record, that evidence was elicited at trial that the complainant was acquainted with the defendant because the defendant had lived next to the complainant in an apartment complex for four months; that the complainant gave the police the name of the defendant and a description of the defendant and the car he was driving at the scene of the instant offense; that the defendant's fingerprint was found on the complainant's answering machine at the scene of the instant offense; and, that the complainant also identified the defendant in a photo spread and in court.

The trial court, therefore, based its decision both on Hart's statements and on evidence presented at trial. We, therefore, overrule Hart's issue. (1)

Conclusion

We affirm the order of the trial court.

Karen Angelini, Justice

Do not publish

1. By holding that the trial court did not err in determining that identity was not an issue, we need not reach Hart's other issues.