Opinion issued January 13, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00126-CR
TOMMIE THOMPSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 356973
MEMORANDUM OPINION
Appellant, Tommie Thompson, Jr., pleaded not guilty to the offense of aggravated rape. On October 27, 1982, the jury found him guilty and assessed punishment at life in prison. Appellant’s judgment and sentence were affirmed by this Court on January 12, 1984. On January 15, 2004, the trial court denied appellant’s motion for post-conviction DNA testing. Appellant presents six issues on appeal. In his first and second issues, appellant asserts that conducting the final hearing on his motion without his being present violated his federal constitutional right to due process and his state constitutional right to confrontation and cross-examination. In his third and fourth issues, appellant complains that the State was allowed to present affidavits from the State’s witnesses and that no evidentiary hearing was held, and that this denied him the opportunity to confront and cross-examine the affiants in violation of his federal and state constitutional rights. In his fifth and sixth issues, appellant asserts that the affidavits were inadmissible hearsay and that the evidence is insufficient to establish that the State does not possess any biological materials to test. We affirm.
BACKGROUND
As permitted under the Texas Code of Criminal Procedure, appellant filed a post-conviction motion requesting DNA testing of evidence he “believed” the State possessed, including the victim’s clothing, fingernail scrapings, pubic hair, and other evidence. Tex. Code Crim. Proc. art. 64.01 (Vernon Supp. 2004). The State, in response to appellant’s motion, claimed that he had not met the requirements of article 64.03, which allows the convicting court to order forensic DNA testing “only if the court finds that the evidence still exists in a condition making DNA testing possible” and the person convicted has established “by a preponderance of the evidence that the person would not have been convicted if exculpatory results had been obtained through DNA testing.” Id. art. 64.03(a). The State’s response included supporting affidavits from the Harris County Clerk’s office, the Houston Police Department (“HPD”) and the HPD Crime Lab, which state that the evidence appellant seeks for DNA testing is not in their possession.
DISCUSSION
Appellant’s first and second issues are based on his assertion that he had a right to be present at the final hearing on his post-conviction motion for DNA testing. Appellant has no such right. See Craven v. State, 95 S.W.3d 506, 509-510 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (holding that post-conviction DNA hearing is analogous to habeas corpus proceeding and that appellant’s exclusion did not implicate his rights under Confrontation Clause or Due Process Clause). The trial court did not err in relying on the State's responsive motion and supporting affidavits when it dismissed appellant’s motion. Id. at 510 (“[T]hese documents were not accusatory, they were filed in response to appellant's motion. Unlike a criminal trial, consideration of a post-conviction DNA proceeding does not necessarily involve any witnesses or accusations against the appellant”) (citations omitted). Appellant’s first and second issues are overruled.
Appellant’s third and fourth issues are based on his assertions that the trial court was required to hold an evidentiary hearing on whether or not biological material existed to test and that the trial court improperly considered the State’s supporting affidavits. In his fifth issue appellant further complains that the affidavits were inadmissible hearsay. The trial court did not err in relying on the State's responsive motion and supporting affidavits when it dismissed appellant’s motion. Id. at 509. On receipt of appellant’s motion, the State was required to deliver the evidence or explain in writing why it cannot do so. Tex. Code Crim. Proc. art. 64.02(2) (Vernon Supp. 2004). The State’s responsive motion and affidavits were not accusatory; they were filed in response to appellant's motion as is required by article 64.02. Craven, 95 S.W.3d 506 at 509 (“Unlike a criminal trial, consideration of a post-conviction DNA proceeding does not necessarily involve any witnesses or accusations against the appellant.”). The trial court may reach its decision on whether or not evidence exists to be tested, “based on the sufficiency of the [S]tate’s written explanation.” Id. Appellant’s third, fourth, and fifth issues are overruled.
In his sixth issue, appellant challenges the sufficiency of the evidence to establish the fact that no “biological material” evidence exists to be tested. He asserts that, under article 62.02(2), “the State has the initial burden of proof of showing that biological materials or evidence no longer exists” and that the State has failed to meet this burden. Specifically, appellant complains that “Harris County has within its territorial boundaries a plethora of police and other law enforcement agencies” and that the State “offered no evidence . . . to show that no other police agency” possessed the evidence he seeks. We considered an identical argument in Caddie v. State and concluded that the State is not required “to obtain an affidavit of no testable evidence from every laboratory and police agency in the region.” No. 01-03-00570-CR, 2004 WL 1585298 at *2 (Tex. App.—Houston [1st Dist.] July 15, 2004, pet. ref’d). In Caddie, as in this case, the offense occurred in Harris County, was investigated by HPD, and the same three agencies provided affidavits. Id. at *2-3. Appellant provided only speculation—on appeal—that there was a possibility that testable evidence might have existed somewhere else and pointed to no evidence in the trial court record to support such speculation. “Without a showing of any basis for such a possibility in the trial court, we conclude that the evidence before the trial court was sufficient to support its finding.” Id. at 3. Appellant’s sixth issue is overruled.
CONCLUSION
We affirm the order of the trial court.
Sam Nuchia
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).