ATABRINE JAMES SIMMONS v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

   NUMBER 13-05-226-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ATABRINE JAMES SIMMONS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez

Appellant, Atabrine James Simmons, appeals from an order of the trial court denying his post-conviction motion for DNA testing. He specifically argues (1) his due process rights were violated when the trial court failed to require that the State explain how it had made a diligent search for biological evidence, (2) the trial court erred by denying his motion for DNA testing because the results of such a test would have created a reasonable probability of his innocence, and (3) the trial court abused its discretion by denying defense counsel=s motion to withdraw. We affirm.

Background

In 1989, Simmons pled guilty to a charge of aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2005). He was placed on deferred adjudication probation until the trial court entered an order adjudicating guilt in 1993. In 2004, following his release from prison, Simmons filed a motion for DNA testing of any biological evidence pursuant to article 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005).

The trial court held a hearing on his motion. At the beginning of the hearing, Simmons= counsel, William A. White, filed a motion to withdraw from representation citing disciplinary rule 3.01.[1] The court took the motion to withdraw under advisement and instructed White to continue as counsel for purposes of the hearing on the motion. After hearing testimony and reviewing various affidavits, the trial court ruled that the requirements of article 64.03 had not been met, and Simmons= motion to compel DNA testing was denied. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2005).

Diligent Search

By his first issue, Simmons argues that his due process rights were violated when the court did not require the State to explain its lack of inquiry into appropriate agencies that may have had evidence, or to otherwise show it had made a diligent search for biological evidence.

Article 64.01 allows a convicted person to submit a motion for forensic DNA testing of evidence containing biological material. Id. atart. 64.01. On receipt of the motion, the court shall require the State to deliver the evidence to the court or explain in writing to the court why it cannot deliver the evidence. See id. at art. 64.02; In re Texas, 116 S.W.3d 376, 382 (Tex. App.BEl Paso 2003, no pet.) (orig. proceeding).

To order DNA testing under chapter 64 of the Texas Code of Criminal Procedure, the court must find the following: (1) the evidence still exists, 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). 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. at art. 64.03(a)(2).

The appellate court reviews the trial court's decision on a motion to compel DNA testing using a bifurcated standard of review. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002); 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. See Rivera, 89 S.W.3d at 59.

Simmons testified that, after his arrest in 1989, he and the two alleged victims had undergone medical examinations at Citizens Hospital. In his affidavit he stated, AI believe the DNA samples [were] taken [and] were also in my favor.@ He testified similarly at the hearing on his motion to compel, stating, Athe medical examinations . . . have been hidden from me since 1989, and I believe do still exist. I went to Citizens Hospital . . . and they told me that after 10 years they destroy all their records, but the original should be in the sheriff=s department.@ Simmons also complains that the State failed to indicate that it had conducted a Adiligent search@ for any testable biological evidence as required, and that it had failed to contact Child Protective Services in making its search.

The State presented evidence that (1) there was no evidence taken during the Simmons investigation that could be tested for DNA, and (2) the various agencies involved had all conducted searches for any evidence in their possession. The State included a complete list of all materials seized upon Simmons= arrest, which included suitcases and duffel bags containing over 400 pornographic magazines, books, photographs and films, but did not include testable items such as clothing or bedding, nor any rape kits or results from medical examinations. The State also noted that all evidence in the case held by the sheriff=s office had already been destroyed in accordance with the office guidelines. A deputy sheriff testified that she had conducted an Ahonest and diligent good faith search@ but could not locate any evidence that would potentially provide DNA samples for testing. Affidavits were also submitted by (1) the police department, which stated that no physical items were in storage relating to the case; (2) the district clerk=s office, which stated that the only items located consisted of legal documents and paperwork, but no DNA test results or DNA evidence; and (3) the district attorney=s office, which stated that there were no items from the case in its possession that could be potentially subjected to DNA analysis.

We conclude that the State, contrary to Simmons= assertion, did demonstrate that it had conducted a diligent search involving all relevant agencies for DNA evidence. The affidavits and testimony establish that the results of any medical examinations that may have been conducted on Simmons and the alleged victims were either not sent to the sheriff=s office or have since been destroyed. Simmons has failed to demonstrate that the State did not conduct a diligent search for evidence and, furthermore, has failed to demonstrate that such evidence still exists. See Watson v. State, 96 S.W.3d 497, 499 (Tex. App.BAmarillo 2002, pet. ref=d); see also In re Texas, 116 S.W.3d at 384. Accordingly, we overrule Simmons= first issue.

Probability of Innocence

By his second issue, Simmons argues that the trial court erred by denying his request for DNA testing despite the fact that exculpatory DNA test results would create a reasonable probability he is innocent.

Simmons relies on article 64.03(a)(2) in making this argument. However, as he concedes in his brief, Aa trial court may order forensic DNA testing only if the court finds that . . . evidence still exists and is in a condition making testing possible.@ See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1). As we have concluded that the State has demonstrated that there was no proof of any remaining testable evidence in this case, we overrule Simmons= second issue.

Motion to Withdraw

By his third issue, Simmons argues that the trial court abused its discretion by not granting defense counsel=s motion to withdraw. We review a trial court's ruling on a motion to withdraw for an abuse of discretion. Brewer v. State, 649 S.W.2d 628, 631 (Tex. Crim. App. 1983); Williams v. State, 154 S.W.3d 800, 802-03 (Tex. App.BHouston [14th Dist.] 2004, pet. ref=d).

Simmons= counsel at the DNA-motion hearing, White, filed his motion to withdraw based on his determination that there were no nonfrivolous grounds to be asserted by his client. The court deferred its ruling until the end of the proceedings and then denied Simmons= motion without further order or comment. Neither Simmons nor White objected at any point to the trial court=s refusal to rule on the motion to withdraw, and no complaint was raised in the notice of appeal. Thus, we conclude the error, if any, in the court=s decision not to grant White=s motion to withdraw was not preserved for the purposes of appeal. See Tex. R. App. P. 33.1.

Furthermore, even if error had been properly preserved, there is nothing in the record to indicate that the trial court abused its discretion in refusing to grant White=s motion. Simmons had a statutory right to counsel during the proceeding. See Tex. Code Crim. Proc. Ann. art. 64.01(c); Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003). The question of whether he enjoyed a constitutional right to effective counsel, however, remains unanswered. See Winters, 118 S.W.3d at 774; Hughes v. State, 135 S.W.3d 926, 927-28 (Tex. App.BDallas 2004, pet. dism=d). When discussing his motion to withdraw at the beginning of the hearing, White informed the court that A[w]hat I would propose to do would be to present the testimony here today as well as the affidavits, and then ask the court to grant that motion.@ Thus, White was prepared to fulfill his statutory obligations as Simmons= counsel during the proceeding and, in fact, did fulfill those obligations by appearing, questioning witnesses, and submitting evidence to the court. We disagree with Simmons= assertion that White did not advocate on behalf of his client but instead simply created a record to support his motion to withdraw; the transcript of the trial as well as the motion to compel and the affidavits produced by White demonstrate that he fully performed in his role as an advocate for Simmons.

Accordingly, we overrule Simmons= third issue on appeal.

Conclusion

The judgment of the trial court is affirmed.

ROGELIO VALDEZ,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 13th day of April, 2006.

[1] Rule 3.01 states A[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.@ Tex. Disciplinary R. Prof=l Conduct 3.01, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G, appendix (Vernon 1998) (State Bar Rules art. X ' 9).