Elmer Edward Lee v. The State of Texas--Appeal from 4th District Court of Rusk County

NO. 12-01-00272-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

ELMER EDWARD LEE,

 
APPEAL FROM THE FOURTH

APPELLANT

 

V.

 
JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE

 
RUSK COUNTY, TEXAS
MEMORANDUM OPINION

Elmer Edward Lee appeals the trial court's order denying his motion for an in camera inspection of evidence and his motion for forensic DNA testing. We dismiss for want of jurisdiction in part and reverse and remand in part.

 

Background

In 1996, a jury found Appellant guilty of intoxication manslaughter and assessed his punishment at twenty years of incarceration. We affirmed Appellant's conviction on direct appeal. Lee v. State, No. 12-97-00025-CR (Tex. App.-Tyler Nov. 24, 1997, no pet.) (not designated for publication). The mandate was issued on January 14, 1998.

In May of 2001, Appellant filed a motion in the convicting court for forensic DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-64.05 (Vernon Supp. 2003). The trial court denied the application without an evidentiary hearing. Subsequently, Appellant filed a motion for an in camera inspection of the physical evidence remaining in the case which the trial court denied.

Appellant's counsel has filed an Anders brief stating that the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel's brief contains a professional evaluation of the record demonstrating why he believes that under the controlling authorities there is no error in the court's judgment. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). Appellant has filed a pro se brief alleging, in one issue, that the trial court erred by denying his motion for DNA testing and his motion for an in camera inspection of the remaining evidence. (1)

 

Appellant's Motion for In Camera Inspection

Under Article V, section 6 of the Texas Constitution, this court has jurisdiction over "all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." Tex. Const. art. V, 6. When a conviction has been affirmed on appeal, and the mandate has issued, general jurisdiction is not restored in the trial court. State v. Patrick, 86 S.W.3d 592, 594 (Tex. Crim. App. 2002). The trial court has special or limited jurisdiction to ensure that a higher court's mandate is carried out and to perform other functions specified by statute, such as finding facts in a habeas corpus setting or determining entitlement to DNA testing. Id. In his brief, Appellant cites no statutory provision or any other source of authority that would authorize the trial court to grant his motion for an in camera inspection of evidence at this stage in the proceedings, and we are aware of none. The trial court was without jurisdiction to issue an order for an in camera inspection of evidence, and, therefore, this court has no jurisdiction to consider said issue. See id. at 595.

 

Appellant's Motion for DNA Testing Prior to the enactment of Chapter 64 of the Texas Code of Criminal Procedure, the trial court would not have had jurisdiction to enter any order relating to post-conviction DNA testing. Id. at 596. However, Chapter 64 specifically returns jurisdiction to the trial court for the limited purpose of determining eligibility for DNA testing. See id. Before ordering DNA testing under Chapter 64, the trial court must find (1) that the evidence still exists, is in a condition making DNA testing possible, and has been subjected to a sufficient chain of custody to establish its integrity; (2) that identity was or is an issue in the case; and (3) that the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing and the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. See Tex. Code Crim. Proc. art. 64.03(a). After the convicting court makes a determination under Chapter 64, with or without holding an evidentiary hearing on the merits of the convicted person's motion, an appeal to the court of appeals is specifically authorized by article 64.05. See Tex. Code Crim. Proc. Ann. art. 64.05.

In the instant case, the trial court granted the State's motion to deny Appellant's motion for DNA testing for want of jurisdiction. Because Chapter 64 specifically grants jurisdiction to the trial court to hear motions for forensic DNA testing, this was error.

 

Conclusion

We dismiss the appeal of the trial court's denial of Appellant's motion for in camera inspection of evidence for want of jurisdiction. We reverse the judgment of the trial court denying Appellant's motion for DNA testing based on want of jurisdiction and remand the case to that court for consideration of the merits of Appellant's motion in conformity with this opinion. We overrule counsel's motion to withdraw.

 

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered February 12, 2003.

Panel consisted of Worthen, C.J. and Griffith, J.

 
(DO NOT PUBLISH)

1. Even had Appellant not filed a pro se brief, we would be hesitant to presume that an Anders analysis is appropriate for reviewing a trial court's findings on a motion for forensic DNA testing.