Affirmed and Memorandum Opinion filed December 9, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01239-CR
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LEON HARRISON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 635,921
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M E M O R A N D U M O P I N I O N
Leon Harrison appeals the trial court’s denial of his post-conviction[1] motion for DNA testing on the grounds that: (1) his state and federal constitutional due process rights were violated; and (2) the State failed to establish its lack of possession of biological materials. We affirm.
Appellant’s first two points of error argue that his state and federal due process rights were violated because he was denied an opportunity to confront and cross-examine the State’s witnesses[2] during his post-trial DNA motion hearing. However, nothing in the record shows that appellant requested to cross-examine these witnesses or otherwise brought this complaint to the attention of the trial court.[3] Therefore, appellant’s first two points of error present nothing for our review and are overruled.
Appellant’s third issue asserts the trial court erred in denying his motion for post-conviction DNA testing because the State failed to sustain its burden to establish that no biological material that could be tested was in any law enforcement agency’s possession. However, two of the State’s affidavits and the trial court findings of fact state that such evidence did exist. Therefore, the lack of such evidence was not a basis for the trial court’s ruling.
Rather, the trial court’s findings of fact and conclusions of law indicate that it denied appellant’s request for DNA testing because he failed to show that: (1) identity was an issue in the case; and (2) a reasonable probability existed that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.[4] Because appellant’s third point of error has not challenged the grounds upon which the trial court’s ruling was based, it fails to show error in denying his motion for post-conviction DNA testing. Accordingly, appellant’s third point of error is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed December 9, 2003.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Appellant pled guilty to second degree sexual assault and was sentenced to two years confinement.
[2] The State offered affidavits from the District Clerk’s exhibit clerk, the Houston Police Department Crime Lab’s custodian of records, and the Houston Police Department’s property room custodian.
[3] See Tex. R. App. P. 33.1(a) (to be preserved for appellate review, a complaint generally must be made by a timely request, objection, or motion to the trial court); Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000) (finding that appellant’s failure to object under the Confrontation Clause waived that argument on appeal).
[4] See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B), (a)(2)(A) (Vernon Supp. 2004) (allowing a convicting court to order DNA testing only if, among other things, the court finds that identity was an issue in the case and the convicted person establishes 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); Dinkins v. State 84 S.W.3d 639, 643 (Tex. Crim. App. 2002) (noting that a trial court is never required to grant a convicted person’s request for testing absent such a showing).