Opinion issued on April 1, 2004.
In The
Court of Appeals
For The
First District of Texas
NOS. 01-03-00195-CR
01-03-00196-CR
JOHN EDWARD MAPP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 732033 and 732034
MEMORANDUM OPINION
Appellant, John Edward Mapp, pleaded guilty to sexual assault of a child in two separate causes. The court sentenced appellant, pursuant to an agreed plea bargain, to two years’ confinement in each cause. Appellant subsequently filed motions requesting post-conviction DNA testing in each cause, which the trial court denied. In five points of error, appellant contends that the trial court committed reversible error when it (1) denied appellant the opportunity to confront and cross-examine the State’s witnesses used against him at his post-conviction DNA hearing, in violation of his state and federal constitutional rights to due process, (2) considered hearsay evidence in the form of the State’s affidavits against appellant during appellant’s post-conviction hearing, (3) denied appellant DNA testing of biological materials where the evidence failed to establish that no biological materials still existed that could be tested, and (4) failed to grant appellant’s motions for disclosure of evidence where the record suggests that some evidence containing biological material was still in the possession of the State. We affirm.
Background
Appellant filed pro se motions requesting that the trial court order DNA testing on any evidence in the State’s possession that contained biological material. Appellant’s counsel filed a similar motion in each cause on appellant’s behalf. None of the motions identified the biological evidence on which appellant sought testing. The State filed motions requesting that the trial court deny appellant’s motions. The State tendered three affidavits from: (1) Melchora Vasquez, Harris County District Clerk’s Office exhibits clerk, who stated that her office possessed no evidence relating to appellant’s cause number; (2) Jim Bolding, Houston Police Department Crime Lab records custodian, who stated that the HPD crime lab had received no evidence related to appellant’s case; and (3) K.L. McGinnis, Houston Police Department records custodian, who stated and provided documentary evidence establishing that the evidence previously in HPD’s custody relating to appellant’s case, one sexual assault kit, had been destroyed on January 22, 1998.
The trial court denied appellant’s motions and adopted the State’s proposed findings of fact and conclusions of law, finding, in part, that appellant failed to show (1) that biological evidence still existed in a condition making DNA testing possible, and (2) that a reasonable probability existed that he would not have been prosecuted or convicted had exculpatory test results been obtained through DNA testing.
Right to Confrontation
In his first two points of error, appellant contends that the post-conviction DNA hearing violated his state and federal constitutional rights to confrontation and cross-examination because he was not present.
Although the trial court’s signed orders state that the defendant was not present, the record reflects that the defendant was present when the court considered and denied his motions. Regardless, as in a post-conviction writ of habeas corpus proceeding, an applicant for post-conviction DNA analysis enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing. See Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Consequently, appellant 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 and second points of error.
Hearsay Objection
In his third point of error, appellant claims that the court erred by admitting into evidence the State’s affidavits during the hearing because they were inadmissible hearsay, in violation of the Texas Rules of Evidence.
We have previously held that no evidentiary hearing is required in considering whether DNA evidence exists and that the State’s written explanations need not be accompanied by affidavits. See Cravin, 95 S.W.3d at 511.
We overrule appellant’s third point of error.
Denial of Post-Conviction DNA Motions
In his fourth point of error, appellant contends that the convicting court erred in denying his motions for DNA testing because the State failed to establish that no such materials were still in the State’s possession.
In reviewing the trial court’s decision on a motion for post-conviction DNA testing, we afford almost total deference to the trial court’s determination of historical-fact issues and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). However, the ultimate question of whether a reasonable probability exists that exculpatory DNA tests would have proven innocence is an application-of-law-to-fact question that does not turn on credibility and demeanor and is, therefore, reviewed de novo. Rivera, 89 S.W.3d at 59.
To grant post-conviction DNA testing, the trial court must first determine whether evidence still exists, is in a condition making DNA testing possible, is subject to a chain of custody sufficient to establish that it has not been altered, and whether identity was or is an issue in appellant’s case. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) (Vernon Supp. 2004). Second, the trial court must determine whether appellant established by a preponderance of the evidence that “a reasonable probability exists that [he] would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. Id. art. 64.03(a)(2)(A) (Vernon Supp. 2004). Thus, an applicant must show that “a reasonable probability exists that exculpatory DNA tests will prove [his] innocence.” Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Ex Parte Guzmon, 730 S.W.2d 724, 733 (Tex. Crim. App. 1987).
Here, there was uncontroverted evidence that the State no longer had possession of any evidence relating to appellant’s case that could have been subjected to DNA testing. Accordingly, the trial court did not err in denying appellant’s motion for post-conviction DNA testing. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex. Crim. App. 2002).
We overrule appellant’s fourth point of error.
Motion for Disclosure
In his fifth point of error, appellant contends that the trial court failed to grant appellant’s motion for disclosure of evidence where the record suggests that some evidence containing biological material was still in possession of the State.
Because the uncontroverted evidence presented to the trial court indicated that the State was no longer in possession of any evidence in appellant’s case that could have been subjected to DNA testing, the trial court did not err in denying appellant’s motions for disclosure of evidence. See Kutzner, 75 S.W.3d at 438.
We overrule appellant’s fifth point of error.
Conclusion
We affirm the trial court’s orders denying appellant’s post-conviction motions for DNA testing.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).