Calvin, Tony Ray v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed October 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01204-CR

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TONY RAY CALVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 174th District Court

Harris County, Texas

Trial Court Cause No. 646,769

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

This is an appeal from a denial of appellant Tony Ray Calvin s motion for post-conviction DNA testing. Raising six issues, appellant seeks reversal of the trial court s order denying relief and requests that a new hearing be held on his motion. We affirm.

Background

In 1993, a jury convicted appellant of aggravated robbery and the court assessed punishment at thirty years confinement. Appellant s conviction was affirmed by this Court in Calvin v. State, No. 14-93-00293-CR, 1995 WL 517320 (Tex. App. Houston [14th Dist.] Aug. 31, 1995, pet. ref d) (not designated for publication). In August 2001, appellant filed a motion for post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01 64.05 (Vernon Supp. 2003). Appellant attached an affidavit to his motion stating that a pair of green sweat pants containing blood, worn by the perpetrator of the offense, existed at the time of trial. The State filed a response to appellant s motion, supported by affidavits, asserting the green sweat pants were not in its custody.[1] The trial court denied appellant s motion for DNA testing.

Appellant asserts six issues, claiming the trial court erred in not allowing him to be present or confront and cross-examine witnesses at a hearing, admitting the State s affidavits into evidence, and denying his motion for post-conviction DNA testing. The First Court of Appeals considered the same issues in Cravin v. State, 95 S.W.3d 506, 510 (Tex. App. Houston [1st Dist.] 2002, pet. ref d), and held them to be without merit. We agree with the reasoning of our sister court and hold appellant s claims to be groundless.

Discussion

In his first two points of error, appellant claims that his federal constitutional right to due process and his state constitutional right to confrontation and cross-examination were violated when the trial court conducted a hearing in his absence. First, we are unconvinced that the trial court conducted a hearing. An evidentiary hearing is not required on a motion for DNA testing under article 64. See Tex. Code Crim. Proc. Ann. art. 64.01 64.05; Rivera v. State, 89 S.W.3d 55, 58 59 (Tex. Crim. App. 2002). The appellate record does not indicate a hearing was held, only that the parties waived the presence of a court reporter when the motion was decided. Additionally, the record does not reflect that appellant was absent. In fact, appellant filed an objection to the proceedings in which he requested that the record reflect the State, the undersigned counsel, and the Movant are before this Court. Because the appellate record does not indicate appellant s absence, we conclude that appellant s first two issues are without merit.

Further, even if a hearing was held, nothing in the United States or Texas Constitutions expresses that the trial court must require an applicant s presence at a post-conviction DNA testing proceeding. Cravin, 95 S.W.3d at 510. Like a post-conviction writ of habeas corpus, a post-conviction motion for DNA testing is a collateral proceeding that does not involve witnesses or accusations against a criminal defendant. Id. In both types of proceedings, an applicant enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing. Id. (citing Ex parte Mines, 26 S.W.3d 910, 914 15 (Tex. Crim. App. 2000)). Accordingly, we overrule appellant s first two issues.

In his third and fourth issues, appellant claims his federally-protected right to due process and state-protected right to confrontation and cross-examination were violated when he was denied the opportunity to confront and cross-examine the witnesses against him. Having held that nothing in the United States or Texas Constitutions requires an applicant s presence at a DNA testing proceeding, we hold for the same reasons that appellant does not have the right to confront and cross-examine witnesses. Id.

In his fifth issue, appellant argues that the trial court erred in considering inadmissible hearsay affidavits submitted by the State. The State is not required to file affidavits with its response to an applicant s motion for DNA testing; the court may reach a decision based solely on the convicted person s motion and affidavit and the State s response. Id. at 509. Therefore, the State s affidavits were unnecessary to the trial court s decision. We overrule appellant s fifth issue.

In his sixth issue, appellant contends the trial court erred in denying his motion for DNA testing. Specifically, appellant claims that the State failed to establish that the requested materials (bloody, green sweat pants) were no longer in possession of the State. A court may order post-conviction DNA testing only if the court finds that the evidence still exists in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a). In response to appellant s motion for DNA testing, the State explained that the requested materials were not in possession of the Harris County District Clerk s Office or the South Houston Police Department. We conclude that this information was sufficient to enable the trial court to conclude the evidence does not still exist in a condition making DNA testing possible. Cravin, 95 S.W.3d at 510. We overrule appellant s sixth issue.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 9, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Seymore.

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

[1] We note that until April 5, 2001, the State was not required to preserve evidence containing biological material. See Tex. Code Crim. Proc. Ann. art. 38.39 (Vernon Supp. 2003) (requiring the State to ensure preservation of evidence containing biological materials under certain circumstances)(effective April 5, 2001).