Opinion issued May 20, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00119-CR
BILLY WAYNE HALL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 566818
MEMORANDUM OPINION
Appellant, Billy Wayne Hall, challenges the convicting court’s order denying his motion for post-conviction DNA testing. In six points of error, appellant contends that the trial court committed reversible error when it (1) conducted a hearing on appellant’s motion without appellant being present in violation of his state and federal constitutional rights to due process, confrontation, and cross-examination, (2) considered the State’s affidavits, which were submitted in response to appellant’s motion and which contained inadmissible hearsay evidence, and (3) denied appellant DNA testing “where the State failed to establish that no such materials were still in possession of the State.”
We affirm.
Background
In 1988, appellant pled guilty to aggravated sexual assault, and the trial court sentenced appellant to 27 years in prison. No appeal was taken. In 2002, appellant filed a motion for DNA testing in the convicting court under chapter 64 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 64.01-.05 (Vernon Supp. 2004). The State filed a response, moving the convicting court to deny appellant’s motion. In support of its response, the State tendered affidavits from the Harris County District Clerk’s Office, the Harris County Medical Examiner’s Office, and the Harris County Sheriff’s Office, which showed that the none of the agencies possessed evidence from appellant’s conviction. The convicting court denied relief and adopted the State’s proposed findings of fact and conclusions of law. The convicting court found, in part, that appellant failed to show that “the evidence still exists . . . in a condition making DNA testing possible” and that “a reasonable probability exists that [appellant] would not have been prosecuted or convicted if exculpatory test results been obtained through DNA testing.”
Constitutional Rights to Due Process, Confrontation, and Cross-Examination
In appellant’s first four points of error, he contends that the trial court violated his federal and state constitutional rights to due process, confrontation, and cross-examination by conducting the hearing on his motion for post-conviction DNA testing without him being present. Although the parties waived the presence of a court reporter at the hearing, some indication exists in the record that appellant was present at the hearing on his motion. Even assuming that appellant was not present, appellant’s argument lacks merit. Both the Court of Criminal Appeals and this Court has held that nothing in Chapter 64 requires the trial court to hold an evidentiary hearing when determining a post-conviction motion for DNA testing. Whitaker v. State, No. 74612, 2004 WL 63981 at *3 (Tex. Crim. App. Jan. 14, 2004); Cravin v. State, 95 S.W.3d 506, 509-10 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). As in a post-conviction writ of habeas corpus proceeding, an applicant for post-conviction DNA testing enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing on the motion. See Cravin, 95 S.W.3d at 510. Consequently, appellant also does not have a federal or state constitutional right to confront or to cross-examine witnesses in a post-conviction proceeding. See id.
We overrule appellant’s first, second, third, and fourth points of error.
Inadmissible Hearsay Contained in State’s Affidavits
In his fifth point of error, appellant contends that the convicting court erred in considering affidavits submitted by the State because they constituted inadmissible hearsay in violation of the Texas Rules of Evidence. In Cravin, we determined that no evidentiary hearing is required in considering whether DNA evidence exists and that the State’s written response need not be accompanied by affidavits. Id. at 511. For this reason, at least two Texas courts have determined that the rules of evidence are not necessarily implicated in the determination of a post-conviction motion for DNA testing. Thompson v. State, 123 S.W.3d 781, 785 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Mearis v. State, 120 S.W.3d 20, 25 (Tex. App.—San Antonio, 2003, pet. ref’d).
Rather than an evidentiary hearing, Chapter 64 specifically contemplates a post-conviction proceeding with submission of affidavits from the applicant and a written response from the State. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), 64.02(2)(B) (Vernon Supp. 2004). Because the State is not required to file affidavits with its response to an applicant’s motion for DNA testing, the convicting court may reach a decision based solely on the convicted person’s motion and affidavit and the State’s response. Cravin, 95 S.W.3d at 509. Therefore, the State’s affidavits were unnecessary to the convicting court’s decision in this case. Id.
We overrule appellant’s fifth point of error.
Denial of Motion for DNA Testing
In his final issue, appellant contends that the convicting court committed reversible error in denying his motion for DNA testing of biological materials because the State failed to establish that no such evidence existed. In particular, appellant argues that the State offered no evidence “to show that no other police agency had seized evidence in relation to [appellant’s] alleged offense, or that any such evidence would not still be in that law enforcement agency’s possession.”
The convicting 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)(1)(A)(i) (Vernon Supp. 2004). The convicting court in this case found that appellant failed to meet his burden to establish this requirement.
After an applicant files a post-conviction motion for DNA testing, the convicting court is required to provide the State with a copy of the motion. See Tex. Code Crim. Proc. Ann. art. 64.02(1) (Vernon Supp. 2004). The State then is required either to deliver the evidence to the court or to explain in writing why the evidence cannot be delivered to the court. Id. art. 64.02(2); Cravin, 95 S.W.3d at 509. In response to appellant’s motion for DNA testing, the State in this case cited affidavits from the representatives of the district clerk’s office, the medical examiner’s office, and the sheriff’s office. These affidavits explained that none of these agencies were in possession of biological evidence in appellant’s case.
As noted by one of our sister courts, “The State was not required to obtain affidavits from every criminal justice department in the county as to criminal investigations in which they were not involved.” Thompson, 123 S.W.3d at 786. We conclude that the response filed by the State was sufficient to enable the convicting court to determine that no evidence existed for DNA testing in this case. See Cravin, 95 S.W.3d at 511; see also Thompson, 123 S.W.3d at 786; Mearis, 120 S.W.3d at 25. We hold that the convicting court did not err in denying appellant’s motion for post-conviction DNA testing.
We overrule appellant’s sixth point of error.
Conclusion
We affirm the convicting court’s order denying appellant’s motion for post-conviction DNA testing.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).