Steven Charles Jones v. The State of Texas--Appeal from 228th District Court of Harris County

NUMBER 13-05-718-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

STEVEN CHARLES JONES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 228th District Court

of Harris County, Texas.

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Ya ez and Castillo

Memorandum Opinion by Justice Castillo

Appellant, Steven Charles Jones, appeals from a post conviction denial of his motion for DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005). We affirm.

I. Background

A jury convicted Jones of possession with intent to deliver cocaine, and the trial court assessed punishment at thirty years' imprisonment. He appealed, and this Court affirmed the judgment of the trial court in Jones v. State, No. 13 99 412 CR, 2000 Tex. App. LEXIS 5991 (Tex. App.BCorpus Christi Aug. 31, 2000) (not designated for publication). On May 28, 2003, Jones filed an affidavit alleging that he was tried with "someone else's evidence."[2] On August 5, 2003, Jones filed a letter requesting the convicting court to order testing of the crack and powder cocaine admitted in evidence at his trial because "something is wrong with the evidence." He asserted that the weights and types of cocaine differed in his first and second trials.[3] He added that such testing would show that the drugs admitted in evidence were not the drugs alleged to have been found at or near the scene. Apparently construing the letter and affidavit as a motion for forensic DNA testing,[4] the convicting court appointed counsel to represent Jones for purposes of his motion.[5]

The State filed a motion to deny DNA testing, asserting that the only available evidence pertaining to Jones's case did not contain any biological material for DNA testing. The State maintained that Jones could not show that (a) evidence existed that was in a condition making DNA testing possible, (b) identity was an issue, or (c) Jones would not have been convicted if exculpatory results were obtained through DNA testing. The State attached three affidavits to its motion. The first affidavit from the exhibits clerk with the Harris County District Clerk's Office shows that the office possesses some evidence pertaining to Jones's trial court case.[6] The second affidavit from the property and evidence custodian of the Houston Police Department ("HPD") indicates that the records of the property room do not reflect that property or evidence pertaining to Jones's case is in the possession of the HPD property room. The third affidavit from the evidence and records custodian of the HPD crime laboratory shows the crime laboratory possesses some evidence pertaining to Jones's case.[7]

It appears that the convicting court convened a hearing but the parties waived a record of the proceedings. Jones filed written objections to the proceedings and the evidence. He objected to the trial court deciding the matter based on affidavits. He objected that he was denied the right under the federal and state constitutions to appear at the hearing and to cross-examine and confront the witnesses. He further objected that the affidavits constituted inadmissible hearsay. In the same document, Jones requested, in part, that "the record reflect that all issues of fact will be resolved on the basis of affidavits filed with the Court." By written order, the convicting court denied his objections. The convicting court entered findings of fact, conclusions of law, and an order denying Jones's motion for forensic DNA testing. In pertinent part, the trial court found that Jones was not entitled to forensic DNA testing because he failed to demonstrate that (1) any biological evidence exists and is in a condition making DNA testing possible and (2) identity is an issue. This appeal ensued.

Jones presents six points of error.[8] The State essentially responds that Jones did not carry his burden to prove that the results of the testing could constitute affirmative evidence of his innocence, arguing that the record shows that identity was not an issue in Jones's trial. The State asserts that Jones is not entitled to be present or to confront or cross-examine witnesses at a hearing. Further, the State asserts that the convicting court is not bound by evidentiary rules in an article 64 hearing. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2005).

II. Forensic Testing

A. Article 64.03

A convicting court may order forensic DNA testing of evidence containing biological material only if: (1) the court finds that 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; (2) identity was or is an issue in the case; (3) the convicted person establishes by a preponderance of the evidence that a reasonable probability exists he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and (4) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or the administration of justice. See Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2005). To be entitled to post conviction DNA testing under chapter 64, Jones had the burden to establish by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through DNA testing. See id. art. 64.03(a)(2)(A); Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006) (en banc) (citing Smith v. State, 165 S.W.3d 361, 363 64 (Tex. Crim. App. 2005)). Jones must also show that identity was or is an issue in the case. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2005).

B. Standard of Review

In an appeal of a post conviction DNA proceeding under chapter 64, 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 convicting court's determination of issues of historical fact and application of law to fact issues that turn on credibility and demeanor. Id. We review de novo other application of law to fact issues. Id. "The ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence is an application of law to fact question that does not turn on credibility and demeanor and is therefore reviewed de novo." Skinner v. State, 122 S.W.3d 808, 813 (Tex. Crim. App. 2003) (quoting Rivera, 89 S.W.3d at 59).

C. Discussion

By his sixth point of error, Jones maintains that the trial court erred in denying his motion because the State failed to carry its initial burden to prove that biological materials or evidence no longer exist. The State essentially responds that Jones bore the burden to prove he was entitled to DNA testing, and he did not meet that burden.

The purpose of a chapter 64 motion is to secure forensic DNA testing of evidence that contains biological material. SeeTex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2005). In this case, Jones sought an investigation concerning the differences in the weights and types of cocaine tendered as evidence in his two trials. His motion does not request "DNA testing of evidence that contains biological material." The record does not demonstrate that evidence that contains biological material was secured in relation to the underlying offense. See id. art. 64.03(b). Testing of weights and types of cocaine is beyond the scope of chapter 64 because the chapter does not authorize DNA testing of non-biological material. Id. Even assuming he sought testing of biological material, he has not shown that biological evidence exists. See id. art. 64.03(a)(1)(A). Jones has also not demonstrated that identity is or was an issue. See Wilson, 185 S.W.3d at 484.

Chapter 64 authorizes the convicting court to order only DNA testing and nothing more. Wolfe v. State, 120 S.W.3d 368, 372 (Tex. Crim. App. 2003). A convicting court is prohibited from granting a convicted person's request for DNA testing unless the requirements in article 64.03 are satisfied. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex. Crim. App. 2002). Jones has not met the threshold requirements for requesting forensic DNA testing of evidence containing biological material. See Tex. Code Crim. Proc. Ann. art. 64.03(a). Consequently, our de novo review leads us to conclude that the convicting court properly denied the motion. See Dinkins, 84 S.W.3d at 643. Further, because Jones did not present to the trial court a request for DNA testing of evidence that contains biological material, he has presented nothing for review. See Tex. R. App. P. 33.1(a)(1)(A). Jones cannot request on appeal what he did not request below. Id.

We overrule Jones's sixth point of error. Because the issue is dispositive, we need not address Jones's remaining points of error as they are grounded in a pleading not before the trial court.[9] See State v. Plambeck, 182 S.W.3d 365, 367 (Tex. Crim. App. 2005) (en banc) ("A court is not required to address issues that become moot because of the resolution of other issues.").[10]

III. Conclusion

Because we conclude that there is no threshold pleading to support chapter 64 relief, we affirm the trial court's denial of Jones's motion.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. 47.2(b)

Memorandum Opinion delivered and filed this

the 13th day of July, 2006.

[1] See Tex. R. App. P. 47.1, 47.4.

[2] In his affidavit, Jones stated:

My name is STEVEN C. JONES; I was convicted with evidence that was tainted by the Harris County Crime Lab (NOW UNDER INVESTIGATION) in that the evidence submitted at the second trial of this cause was "NOT THE SAME" as the submitted evidence at the first trial. I was tried with someone else's evidence. I do have documented evidence proving my allegations in that I possess the trial records of both trials. These records clearly show that the evidence produced by the state in this cause was DIFFERENT. Said material was secured by law enforcement in relation to the offense that is the basis of the above referenced conviction. Further, that material was in the legal possession of the state and the Harris County Crime Lab during the trial of this offense but was not subjected to scrutiny or objection by my attorney in this [sic] cause of the second trial.

[3] The first trial concluded with a hung jury.

[4] A convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2005). The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. Id.

[5] A convicted person is entitled to counsel during a proceeding under chapter 64 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2005); Lopez v. State, 114 S.W.3d 711, 717 (Tex. App.BCorpus Christi 2003, no pet.).

[6] The list of evidence includes business records, medical records, a photo, a money list record, and a stipulation of evidence.

[7] The following evidence is itemized: one Ziploc containing two syringes; one Ziploc containing two key holders and a pipe; one Ziploc containing two Ziplocs, three glass tube pipes, and six wire wads; and one Ziploc containing three syringes, two Ziplocs, and a glass tube pipe.

[8] By six points of error, Jones asserts that his federal and state constitutional rights were violated because the trial court conducted a final hearing without his presence and relied on inadmissible hearsay evidence. Jones also asserts that the trial court erred in denying his motion for DNA testing.

[9] Jones's remaining points of error are based on chapter 64 procedure. He maintains the trial court erred by (1) conducting the hearing in his absence, (2) denying him the right to confront and cross-examine witnesses, and (3) considering the affidavits admitted in evidence. However, because he has not met the threshold requirements for forensic DNA testing, an issue we consider dispositive, we need not address his remaining points. See Tex. R. App. P. 33.1(a)(1)(A).

[10] We observe that by his first through fourth points of error, Jones complains he was denied the right to appear and confront and cross-examine witnesses. Article 64.03 does not require a hearing for a convicting court to determine if the applicant is entitled to DNA testing. Rivera v. State, 89 S.W.3d 55, 58 59 (Tex. Crim. App. 2002). By contrast, a convicting court must hold a hearing under article 64.04 after a convicted person has obtained DNA testing under article 64.03. Id. at 59. Even so, the record does not demonstrate that Jones made an affirmative request to appear by filing a motion for a bench warrant and that the motion was denied. Once more, he has not preserved error. See Tex. R. App. P. 33.1. Further, by his fifth point of error, Jones maintains that the trial court improperly considered the State's three affidavits. Because article 64.03 does not require a hearing under Rivera, Jones has not demonstrated harm by the trial court's reliance on the affidavits before it. See Tex. R. App. P. 44.2. Consequently, even assuming chapter 64 applied, we would overrule Jones's remaining points of error.