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The Court on this day, June 1, 2006, has withdrawn this opinion and judgment dated February 23, 2006, and substituted the opinion and judgment dated June 1, 2006. |
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Opinion filed February 23, 2006
In The
Eleventh Court of Appeals
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No. 11-04-00254-CR
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RANDAL FRANKLIN CARAWAY, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. CR-95-19,072
O P I N I O N
This is an appeal from an order denying Randal Franklin Caraway=s motion for forensic DNA testing. We affirm.
In 1996, appellant was convicted of strangling the victim. Appellant raised self-defense at trial, and his statement to law enforcement officers in which he stated that he acted in self-defense was admitted into evidence. On September 29, 2004, appellant filed a motion requesting DNA testing pursuant to Tex. Code Crim. Pro. Ann. art. 64.01 (Vernon Supp. 2005). Appellant also filed a motion to exhume the victim=s body. After a hearing, the trial court denied both motions.
On appeal, appellant contends that the trial court erred by denying the motion for forensic testing and by failing to enter specific findings to support its denial of the motion. The gist of appellant=s arguments both before the trial court and this court is that it was physically impossible for him to have committed the murder because he had a deformed hand and because he was not with the victim at the time of the offense and that DNA testing of material underneath the victim=s fingernails would show that his DNA was not present and would, therefore, establish his innocence.
Tex. Code Crim. Pro. Ann. art. 64.03 (Vernon Supp. 2005) provides that the trial court may order forensic DNA testing only if the trial court finds that evidence exists in a condition that makes DNA testing possible, that the evidence has been subjected to a proper chain of custody, that identity was an issue, that the convicted person has established by a preponderance of the evidence that he would not have been convicted if exculpatory results had been obtained through forensic DNA testing, and that the request for testing is not made for the purposes of unreasonable delay in the administration of justice or the execution of the sentence. Article 64.03 does not require that the trial court enter written findings. Any arguments based on the contention that the trial court erred by not entering written findings are overruled.
At the hearing on appellant=s motion for DNA testing, the trial court sustained the State=s objections to the admission of testimony concerning any physical impairment that appellant might have had at the time of the offense and testimony concerning his whereabouts at the time of the offense. As noted by the State in its brief, the trial court properly excluded this testimony as improper in a hearing on a motion under Article 64.01. Any contentions based on this evidence are not properly before this court in this appeal from the denial of the motion for DNA testing and are overruled. Tex. Code Crim. Pro. Ann. art. 64.05 (Vernon Supp. 2005); Lopez v. State, 114 S.W.3d 711, 714 (Tex. App.CCorpus Christi 2003, no pet.).
Appellant testified that he did not know how the victim=s body had been disposed of, that there had been no testimony at trial that the victim was embalmed, and that he believed the victim=s body had been in the possession of law enforcement officials since its discovery. Based on the medical examiner=s testimony at trial that a strangled victim should have DNA of her attacker under her fingernails, appellant testified that he believed DNA testing would show another person=s DNA under the victim=s fingernails establishing that he did not strangle the victim. Appellant denied that, seven days after the victim=s death, he had taken law enforcement officers to the open trash pit where her body was discovered and denied that the written statement admitted at trial reflected what he told law enforcement officers.
Kenneth Preston, an investigator with the district attorney=s office, testified that appellant led him and other law enforcement officers to the rural location where the victim=s body was found. Preston testified that the information by which they were able to locate the body came only from appellant. Two days after the body was discovered, appellant made a statement to Preston that he had strangled the victim in self-defense. This statement was introduced into evidence both at the hearing and at the trial on the merits. Photographs of the trash pit and the victim=s decomposing body were also admitted into evidence.
At the conclusion of the hearing, the trial court stated:
All right. I will deny the motion for exhumation of the body of the victim, there being no showing that forensic evidence exists, or if the same did exist that it was somehow unavailable at the time of trial. It is not found to have been shown by the evidence in this hearing. The preconditions of Chapter 64 [Articles 64.01, 64.03] have not been met and the motion for DNA testing is denied. There is a proposed order submitted by Mr. Caraway, and I will amend that proposed order and use that form for the record, and order that the defendant be returned to the custody of the Institutional division of the Department of Criminal Justice this date.
The trial court then amended the proposed order to reflect that the motion for DNA testing was denied.
In reviewing the trial court=s ruling on a motion for DNA testing, the appellate court employs the bifurcated Guzman[1] standard of review. Rivera v. State, 89 S.W.3d 55 (Tex. Crim. App. 2002). Using this standard, we find that the trial court did not err in denying the motion. Appellant did not establish that any evidence existed in a condition to be tested and did not show a reasonable probability existed that exculpatory DNA test results would prove his innocence. Skinner v. State, 122 S.W.3d 808, 811 (Tex. Crim. App. 2003); Kutzner v. State, 75 S.W.3d 427, 438-39 (Tex. Crim. App. 2002). The trial court sufficiently complied with the requirements of Article 64.03. Appellant=s arguments on appeal are overruled.
The order of the trial court is affirmed.
PER CURIAM
February 23, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.