Opinion issued October 16, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01036-CR
LISA ANN SPENCER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 806410
MEMORANDUM OPINION
Appellant, Lisa Ann Spencer, was convicted of aggravated assault for threatening a store clerk with a screwdriver. The jury assessed punishment at 28 years at confinement. The Fourteenth Court of Appeals affirmed her conviction. Spencer v. State, No. 14-99-00969-CR, (Tex. App.—Houston [14th Dist.] November 30, 2000, no pet.) (not designated for publication). Appellant subsequently requested DNA testing of the screwdriver. The trial court held a hearing on the motion, accepted the State’s findings of fact, and denied the request for DNA testing. Appellant asserts that (1) the trial court erred by denying appellant the ability to confront and cross-examine the witnesses against her, as required under state and federal law; (2) the trial court erred in considering the State’s affidavits, as they were inadmissible hearsay; and (3) the trial court erred in denying DNA testing when the State failed to establish that no testable materials were still in the State’s possession.BACKGROUND
In the commission of her offense, appellant thrust a screwdriver at complainant’s head. Complainant raised his arm to protect himself from the screwdriver and the weapon pierced his hand. Appellant requested that the screwdriver used in her offense be DNA tested for the victim’s blood. The State’s response included an affidavit from Melchora Vasques of the Harris County District Clerk’s office, stating that the clerk’s office had the screwdriver. The State submitted findings for the trial court’s approval that neither the Houston Police Department Crime Lab nor the Houston Police Department property room had evidence of the incident. The trial court conducted a hearing on the motion for DNA testing. After the hearing, the trial court adopted the State’s findings of fact and denied appellant’s request for DNA testing.
DISCUSSIONIn her first and second points of error, appellant contends that her federal and state constitutional rights were violated by not having the opportunity to cross-examine the witnesses against her. In her third point of error, appellant asserts that the affidavits used against her were inadmissible hearsay in violation of the Texas Rules of Evidence. We overrule appellant’s first, second, and third points of error. See Cravin v. State, 95 S.W.3d 506, 510-11 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Denial of DNA testing
In her fourth point of error, appellant contends that the trial court committed reversible error in denying the appellant DNA testing of biological materials, because the State failed to establish that no such materials were still in the possession of the State. The State did establish by affidavit that the screwdriver from the incident was in the possession of the Harris County District Clerk’s office. However, the record does not show whether there is any DNA material that could be tested actually on the screwdriver. The appellant has the burden of proving that there is testable material; here the appellant has failed to meet this burden under article 64.01 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon 2003).
Article 64.03 of the Texas Code of Criminal Procedure provides that not only must the evidence be available for testing, but there should also be a reasonable probability that DNA testing could exonerate the person. Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2003). The relevance of the evidence is at issue, as well as the availability.
In this case, there were multiple eyewitness verifications that appellant was at the scene and swung at the complainant with the screwdriver. The Texas Penal Code outlines one definition of assault as when a person “intentionally or knowingly threatens another with imminent bodily injury.” Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon 2003). Aggravated assault follows the definition of assault in Section 22.01, but includes the use of a deadly weapon. Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon 2003). The jury was instructed that it could convict for aggravated assault on threat of bodily injury alone, without actual contact.
Any DNA evidence that might be found if the screwdriver were to be tested could only go to whether appellant struck the complainant. This evidence would not be dispositive of whether appellant committed assault. The issue would still be decided on the eyewitness testimony that appellant threatened the complainant with the screwdriver. See generally Thompson v. State 95 S.W.3d 469, 472 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (DNA testing on box cutter for complainant’s blood denied because of eyewitnesses and weight of other evidence tending toward appellant’s guilt). Appellant has failed to establish that there is a reasonable probability that DNA testing could exonerate her. Therefore, we overrule the appellant’s fourth point of error.
CONCLUSION
We affirm the decision of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Hedges, Nuchia, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).