Opinion issued November 4, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00726-CR
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LUIS ENRIQUE GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 960740
MEMORANDUM OPINION
Appellant, Luis Enrique Garcia, appeals the convicting court’s denial of his motion for post-conviction DNA testing. In two issues, appellant asserts that DNA testing would show his “actual innocence.”
We affirm.
Background
In 2003, appellant was charged with the aggravated sexual assault of H.G. The probable cause affidavit stated that 12-year-old H.G. reported she had been “dating” and “having sex” with 30-year-old appellant “from May 2003 until June 6, 2003.” On March 16, 2004, appellant pleaded guilty to the charged offense. The trial court found appellant guilty and, pursuant to the State’s punishment recommendation, sentenced appellant to 10 years in prison. Because it was a plea-bargain case, the trial court’s certification indicates that appellant had no right of appeal.
Also on March 16, 2004, the State filed a document entitled, “Notice of Intent to Destroy Evidence.” The notice indicated that the State intended to destroy “any and all evidence” in its possession after 91 days. The notice indicated that it had been sent to appellant and to his counsel.
On October 7, 2004, the district attorney’s office sent a letter to appellant with the heading “Notice.” The letter provided, in relevant part,
The investigation in this matter included a child sexual assault examination done initially by Nurse C.M. Ellen Taft. This exam has been peer reviewed by the University of Texas Medical School physicians assigned to the Children’s Assessment Center medical clinic.
This notice is to further inform you that a number of exams performed by Nurse Taft in other cases have been peer reviewed by the UT Medical School physicians. In a few of these cases, the opinion of the reviewing physician(s) is different than that of Nurse Taft.
On June 23, 2008, appellant filed his “Pro Se Motion for Post-Conviction DNA Testing with Motion for Appointment of Counsel and Brief in Support.” In the motion, appellant stated that, on April 3, 2007, he had filed a “‘Request for Appointment of Counsel, Pursuant to Chapter 64,’ to assist him in obtaining an order for DNA testing.” Appellant stated that he was notified on April 18, 2007 that the request was denied.
Appellant also averred in his motion for DNA testing that he had filed “his state writ of habeas corpus article 11.07.” He described that, in the habeas corpus proceeding, his “only ground for review [was]: ‘Actual Innocence Newly Discovered Evidence That Questions the Evidentiary Support of the Indictment.” Appellant stated that the Court of Criminal Appeals had denied his application for post-conviction writ of habeas corpus on October 17, 2007.
Appellant further asserted that the “newly discovered evidence,” which he referenced, was the October 6, 2004 notice letter from the district attorney’s office regarding the examination performed by Nurse Taft. Appellant also averred that “corruption plague[s] the Harris County labs” and police departments. Appellant also referenced publicized scandals regarding the district attorney’s office. Appellant alleged that these matters have “caused a doubt of justice.”
In addition, appellant asserted that he had pleaded guilty “feeling compelled by his counsel under threat that he would get more time.” Appellant stated that he told his trial counsel that the complainant had reason to fabricate the allegations against him. Appellant averred that he had always maintained his “actual innocence.”
Appellant supported his motion for DNA testing with his unsworn declaration in which he attested,
My counsel compelled me to sign 10 years plea or I would get more than 40 years. March 10 I filed my Motion to dismiss Court Appoint[ed] Attorney and Appointment [of] New Counsel to Act on Behalf of Defendant. . . .[1]
I Luis E. Garcia till the last moment told my attorney to give me the opportunity to send the DNA testing to a private laboratory and he (atty) never facilitated me the access to the DNA for I never lost my claim of telling my attorney I was innocent. My attorney to the last minute advise[d] me to plea[d] guilty for 10 years because if I didn’t sign[] the 10 years I would be sentenced to 40 years, that is why I pled guilty on his advice.
Appellant also attached the notice letter from the district attorney’s office regarding Nurse Taft’s examinations.
The convicting court denied appellant’s “Pro Se Motion for Post-Conviction DNA Testing with Motion For Appointment of Counsel and Brief in Support.” The record does not reflect that the convicting court conducted a hearing on the motion. The record also does not reflect that the convicting court filed findings of fact and conclusions of law in support of its ruling.
Appellant appeals the convicting court’s denial of his request for DNA testing.
Post-Conviction DNA Testing
Appellant asserts two issues in the “Issues Presented” portion of his pro se brief. Appellant states these issues as follows: (1) “Actual Innocence and Factual Innocence Of Inconclusive ‘DNA’ Testing” and (2) “Appellant Has Always Affirmed His Actual Factual Innocence to Attorney & The Courts.”
We review a convicting court’s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We afford almost total deference to the convicting court’s determination of issues of historical fact and the application of law to the fact issues that turn on an evaluation of credibility and demeanor. See id. But when, as here, the clerk’s record and affidavit of appellant are the only sources of information supporting the motion, the convicting court is in no better position than we are to make its decision, and we review the issues de novo. See Smith v. State, 165 S.W.3d 361, 363 (Tex. Crim. App. 2005).
An appellant bears the burden of satisfying the Chapter 64 requirements. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006). Chapter 64 of the Code of Criminal Procedure governs post-conviction requests for DNA testing. Pursuant to article 64.01, a defendant may request the convicting court to permit forensic DNA testing of evidence containing biological material that was in the State’s possession during convicting, if that evidence: (1) was not previously subject to DNA testing because DNA testing was not available; (2) was not previously subjected to DNA testing because DNA testing was available but not technologically capable of providing probative results; (3) was not previously subjected to DNA testing, through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or (4) was previously subjected to DNA testing, but can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2010).
The Court of Criminal Appeals has explained that, “[u]nder Article 64.03, a defendant is not entitled to DNA testing unless he first shows that unaltered evidence is available for testing; that identity was an issue in the case; that there is greater than a 50% chance that he would not have been convicted if DNA testing provided exculpatory results; and that the request is not to delay the execution of the sentence.” Prible v. State, 245 S.W.3d 466, 467–68 (Tex. Crim. App. 2008). A convicting court can only order forensic DNA testing if the statutory requirements are met. See Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
Here, we construe appellant’s assertion of “actual innocence” as a claim that there is at least a 51% chance that he would not have been convicted. See Smith, 165 S.W.3d at 364. Appellant’s motion also indicated that identity was at issue.
Appellant’s motion failed, however, to address other statutory requirements. Specifically, appellant’s motion for DNA testing did not identify “any evidence containing biological material.” See Tex. Code Crim. Proc. Ann. art. 64.01. It is unclear from his motion what evidence appellant seeks to be tested, or whether evidence still exists subject to testing. See Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon Supp. 2010).
Nor does appellant’s motion indicate whether DNA testing occurred in the trial court.[2] See Tex. Code Crim. Proc. Ann. art. 64.01. Appellant’s unsworn declaration states only that he asked his attorney “to send the DNA testing to a private laboratory” and that his attorney “never facilitated me [sic] the access to the DNA.”
Appellant’s motion for DNA testing appears to arise from the district attorney’s notice letter regarding the examination of the complainant, H.G., performed by Nurse Taft. The notice letter does not provide the necessary support for appellant’s request for DNA testing. The letter did not indicate that DNA evidence was collected during Nurse Taft’s examination of H.G. Nor did the letter indicate that Nurse Taft’s examination of H.G. was incorrectly performed. The letter simply stated that the “exam has been peer reviewed by the University of Texas Medical School physicians assigned to the Children’s Assessment Center medical clinic” and informed appellant that “a number of exams performed by Nurse Taft in other cases have been peer reviewed by the UT Medical School physicians. In a few of these cases, the opinion of the reviewing physician(s) is different than that of Nurse Taft.” The letter does not indicate that any discrepancies with Nurse Taft’s examinations pertained to DNA evidence or DNA testing.
In sum, appellant’s motion failed to satisfy the statutory requirements and was properly denied by the convicting court. See Dinkins v. State, 84 S.W.3d 639, 642 (Tex. Crim. App. 2002). Appellant cannot prevail on his two appellate issues asserting “actual innocence.”
Any complaint by appellant asserting that the convicting court erred in denying his motion for appointment of counsel for his DNA testing claim is also without merit. Before it must appoint counsel, a convicting court must find that “reasonable grounds” exist for the filing of a motion for DNA testing. See Gutierrez v. State, 307 S.W.3d 318, 321 (Tex. Crim. App. 2010) (explaining that appointment of counsel in post-conviction DNA proceeding determined by three criteria: (1) defendant must inform convicting court that he or she wishes to submit a motion for DNA testing; (2) convicting court must find that “reasonable grounds” exist for filing of a motion; and (3) convicting court must find that convicted person is indigent).
Appellant’s request for DNA testing arises from the notice letter regarding Nurse Taft. As discussed, the letter does not serve as a proper basis for an order for DNA testing. The convicting court could have concluded that no reasonable grounds existed for filing a motion. Accordingly, appellant has not shown that the convicting court erred when it denied his request for appointment of counsel. See Tex. Code Crim. Proc. Ann. art. 64.01(c).
We overrule appellant’s first and second issues.
Conclusion
We affirm the convicting court’s order denying appellant’s request for DNA testing and appointment of counsel.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
[1] There is no indication whether the trial court ruled on the motion for new counsel.
[2] Appellant indicates for the first time in his appellate brief that DNA testing occurred in the trial court, though it is unclear what was tested.