Jacob Donavan Boeck v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-04-00024-CR
Jacob Donovan BOECK,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 96-0448-CR
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 29, 2004

AFFIRMED

Jacob Donovan Boeck appeals the denial of his post-conviction motion for forensic DNA testing. Boeck contends the trial court erred in finding that the victim's identity was not an issue at his trial, and asserts that he established a reasonable probability that he would not have been convicted if exculpatory DNA results had been obtained under article 64.03 of the Texas Code of Criminal Procedure. We overrule Boeck's issues on appeal and affirm the trial court's order.

Background

Boeck was convicted by a jury of injury to a child, accompanied by a deadly weapon finding based on the use of ethylene glycol, the active ingredient in automobile antifreeze. He was assessed a life sentence. His direct appeal raised ineffective assistance of counsel based on his election of punishment and counsel's purported failure to investigate the facts and law of the case. The trial court's judgment was affirmed. On September 3, 2003, Boeck filed a motion for forensic DNA testing, which was later supplemented with his affidavit. At the December 19, 2003, hearing on the motion, Boeck argued that the blood and urine samples taken from the victim were mixed up at the Mayo Clinic in Minnesota where they were tested. He asserted that the test results, which showed the presence of ethylene glycol, were used at trial to convict him, but were based on someone else's samples, not the victim's samples. On this basis, Boeck sought DNA testing of the samples, arguing that if the samples did not match the victim then there was a reasonable probability that he would not have been convicted. The State argued that victim identity was not an issue at trial or on appeal, and that Boeck had not requested DNA testing at trial even though it was available. The State further argued that even if the DNA results showed the trial samples did not match the victim, other evidence consisting of Boeck's confessions and medical testimony that the child's injuries were consistent with ethylene glycol poisoning was more than sufficient to convict Boeck. The trial court denied Boeck's motion, finding that the identity of the victim was not an issue at trial. Boeck filed an appeal to this court.

Analysis

We review the trial court's decision on a post-conviction motion for forensic DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Under this standard, we review with almost total deference the trial court's determination of issues of historical facts and application-of-law-to-fact issues that turn on credibility and demeanor. Id. By contrast, under the bifurcated standard of review, we review de novo other application-of-law-to-fact issues that do not turn on credibility and demeanor, such as the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would prove innocence. Id.

To obtain DNA testing under Chapter 64, several requirements must be met. See Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004-05). The convicting court may not order testing under Chapter 64 unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002) (en banc). One of those preconditions is a determination by the convicting court that "identity was or is an issue in the case." Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2004-05). "Chapter 64 requires that identity 'was or is' an issue, not that future DNA testing could raise the issue." Bell, 90 S.W.3d at 308.

The first requirement relevant to our review, then, is whether identity was or is an issue in Boeck's case. (1) In his motion for DNA testing and supporting affidavit, Boeck does not state any facts to support his assertion that the victim's identity was or is an issue in the case. There was no evidence presented at the hearing on Boeck's motion to establish that the identity of the victim is or was ever an issue at trial or on appeal. There was only one alleged victim in the case, and that was the child who was injured. Moreover, Boeck confessed to the crime; his identity was not an issue. (2) See Bell, 90 S.W.3d at 308. We hold the trial court did not err in finding that identity was and is not an issue in this case. See Green v. State, 100 S.W.3d 344, 344-45 (Tex. App.--San Antonio 2002, pet. ref'd); see also In re McBride, 82 S.W.3d 395, 397 (Tex. App.--Austin 2002, no pet.).

The gist of Boeck's argument is that the victim's samples were mixed up or substituted with someone else's samples at the lab, and that he was convicted on the basis of someone else's lab results. Boeck's argument is more correctly characterized as a complaint about a breach in the chain of custody of the victim's samples, which goes only to the weight of the evidence and not its admissibility. Silva v. State, 989 S.W.2d 64, 68 (Tex. App.--San Antonio 1998, pet. ref'd). A motion for DNA testing is not the proper means to raise an argument that there was a gap in the samples' chain of custody; that argument should have been raised at trial and, if preserved, on direct appeal. Boeck's chain of custody argument does not make identity of the victim an issue within the meaning of article 64.03(a)(1)(B). The identity of the samples tested is not the issue of identity that will entitle Boeck to DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B).

Accordingly, we conclude the trial court did not err in finding that Boeck is not entitled to DNA testing because he failed to establish that identity is or was an issue in the case. Because we hold Boeck failed to establish the identity requirement under article 64.03(a)(1)(B), we need not reach his second issue. We affirm the trial court's order denying DNA testing.

Phylis J. Speedlin, Justice

DO NOT PUBLISH

1. There is no dispute that the samples still exist, are in a condition that makes DNA testing possible, and have been maintained post-trial under a sufficient chain of custody. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A) (Vernon Supp. 2004-05).

2. Boeck asserts that his confessions should have been excluded because they were coerced. That issue was not raised in Boeck's direct appeal, and is not before us in this appeal from the denial of his motion for DNA testing.