ROOSEVELT HUNNICUTT, Appellant v. THE STATE OF TEXAS, Appellee
Annotate this CaseAFFIRM; Opinion issued October 30, 2008
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01332-CR
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ROOSEVELT HUNNICUTT, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F91-00531-WH
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MEMORANDUM OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
Roosevelt Hunnicutt appeals the trial court's order denying his motion for DNA testing under chapter 64 of the Texas Code of Criminal Procedure. In two issues, he claims the trial court improperly found that identity was not an issue and that the trial court did not apply the proper evidentiary standard in denying appellant's DNA motion. We affirm the trial court's order.
Background
Appellant pleaded guilty to the offense of possession of a controlled substance on February 25, 1991, and was sentenced to twenty-five years in prison. On January 2, 2007, counsel filed a motion for post-conviction DNA testing under chapter 64 of the Texas Code of Criminal Procedure. The State filed its response on July 11, 2007, and the trial court denied the motion without a hearing on August 6, 2007. The trial court's order first concluded that there was “no biological evidence in a condition making DNA testing possible.” The court also concluded that identity was not an issue in the case. In support of this conclusion, the trial court stated that the police “arrested [appellant] for unlawful possession of cocaine shortly after seeing him drop a syringe as he sat on the steps of an abandoned apartment they identified as a 'known drug location.'” After closer examination, the “police found a fresh hole in a vein in [appellant's] right forearm.” The court further concluded that appellant did “not establish by a preponderance of the evidence that he would not have been convicted if exculpatory DNA test results had been obtained through DNA testing.” The court's order noted that, since the prosecution “was only required to prove possession,” and police watched appellant “drop the syringe they later found to be filled with cocaine,” “[e]ven a DNA test result showing none of [appellant's] DNA would not prove he would not have been convicted.”
Standard of Review
We review the trial court's ruling on a post-conviction motion for forensic DNA testing under a bifurcated standard of review. Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We afford almost total deference to the “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); see also Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
Discussion
In his first issue, appellant argues that the trial court erred in finding that identity was not an issue in this case. In his second issue, appellant claims the trial court did not apply the correct evidentiary standard in denying the DNA motion. The State responds that the trial court properly denied appellant's motion because (1) no evidence is available for testing; (2) identity was not an issue in the case; and (3) the record does not support appellant's claim that the trial court used an incorrect evidentiary standard.
A trial court may only order post-conviction DNA testing if the statutory preconditions are met. See Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002). One of the requirements of chapter 64 of the code of criminal procedure, which governs motions for forensic DNA testing, is that a trial court may order such testing only if the court finds that evidence still exists and is in a condition making testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon 2006). In addition,
. . . the convicting court, in reaching a decision on whether or not the evidence exists, may reach that decision based on the sufficiency of the state's written explanation. No evidentiary hearing is required, and the state is not required to accompany its response with affidavits.
Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); see also Whitaker, 160 S.W.3d at 9 n.10 (citing Cravin).
The State's response to appellant's motion for DNA testing informed the trial court that “DPD [Dallas Police Department] has destroyed the syringe from the scene that [appellant] has requested be tested and thus, this Court cannot grant testing.” In support of this assertion, the response cited “Exhibit 5,” which was a letter from the City of Dallas stating that all evidence from appellant's case had been either “released or destroyed.” In its order denying appellant's motion for post-conviction DNA testing, the trial court found that there was “no biological evidence in a condition making DNA testing possible.” Appellant does not challenge this finding. A trial court does not err in denying a motion for DNA testing if there is no evidence to test. We therefore conclude that appellant failed to make the required showing under chapter 64 that “evidence still exists and is in a condition making testing possible.” Furthermore, because the absence of biological evidence is dispositive of this appeal, we need not address appellant's remaining arguments. We overrule appellant's first and second issues.
We affirm the trial court's order denying appellant's motion for post-conviction DNA testing.
AMOS L. MAZZANT
JUSTICE
Do Not Publish
Tex. R. App. P. 47
071332F.U05
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