Affirmed and Memorandum Opinion filed July 10, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-01196-CR
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RICKY MIMMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 412,307
M E M O R A N D U M O P I N I O N
This is an appeal from a convicting court’s denial of appellant Ricky Mimms’ motion for post-conviction DNA testing. Asserting six points of error, appellant seeks reversal of the trial court=s order denying relief and asks that a new hearing be held on his motion. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1985, a jury convicted appellant of aggravated sexual assault and assessed punishment at 99 years’ confinement in the Texas Department of Criminal Justice Institutional Division.[1] This court affirmed that conviction on direct appeal in State v. Mimms, No. C14-85-174-CR (Tex. App.CHouston [14th Dist.] May 1, 1986) (not designated for publication).
In March, 2002, appellant filed a motion requesting post-conviction DNA testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2003).[2] Appellant did not include an affidavit with his motion. Moreover, the motion did not contain a statement of facts and appellant did not identify the evidence for which he sought testing, as required by Chapter 64. See id. Appellant did not assert that identity was at issue in his trial or offer evidence of a reasonable probability that he would not have been prosecuted or convicted if exculpatory results had been obtained as required by Chapter 64.[3] See id. at art. 64.03(a)(1)(B) and 64.03(a)(2)(A).[4]
The State filed a written response to appellant’s motion asserting the non-existence of physical evidence. See id. at art. 64.02.[5] This response was accompanied by three affidavits from persons responsible for the care and custody of evidence at the Harris County and Houston crime labs. All three affiants swore that no evidence existed in connection with appellant’s case.[6]
On October 10, 2002, the trial court denied appellant’s motion for DNA testing and issued written findings of fact and conclusions of law. In its findings, the trial court found (1) there was no DNA evidence in State custody; (2) appellant had not shown DNA evidence existed; and (3) appellant had not demonstrated that a “reasonable probability existed that appellant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” See id. at art. 64.03(a)(2)(A).
This appeal arises from the trial court’s denial of appellant=s motion.
DISCUSSION
Appellant asserts six points of error. First, he asserts his (1) federally-protected right to due process, and (2) state-protected right to confrontation and cross-examination, were violated when the trial court held a hearing on his motion for post-conviction DNA testing in his absence. Next, he asserts his (3) federally-protected right to due process, and (4) state-protected right to confrontation and cross-examination, were violated when the trial court denied him the opportunity to confront and cross-examine the witnesses who “appeared” at his hearing via the State’s affidavits. Finally, he asserts the trial court erred when it (5) considered the State=s affidavitsCwhich he terms “inadmissible hearsay”Cin denying his motion for DNA testing; and (6) denied his motion for post-conviction DNA testing on the basis of such evidence.
In Cravin v. State, the First Court of Appeals addressed the same issues under identical facts. See Cravin v. State, 95 S.W.3d 506 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). We join our sister courtCfor identical reasonsCand hold appellant=s arguments to be without merit.
First, we are unconvinced the trial court’s decision followed a hearing to consider appellant=s motion. A hearing is not required under Chapter 64. See Tex. Code Crim. Proc. Ann. arts. 64.01B64.03 (Vernon Supp. 2003); Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002). Moreover, the appellate record does not reflect the trial court conducted a hearing; it indicates only that the parties waived a court reporter’s presence when appellant’s motion was determined.
Next, we are unconvinced that, if the trial court held such a hearing, appellant was not present. Appellant repeatedly asserts in his brief that the “docket sheet fails to reflect that . . . appellant was present at the time the trial court denied relief,” but he fails to offer evidence or affirmatively state that appellant was not in fact present when the trial court disposed of his motion. To the contrary, appellant filed a written objection to the alleged hearing that asserts: “Movant requests that the record reflect that the State, the undersigned counsel, and the Movant are before the Court.” (emphasis added).
Finally, even if the trial court did hold a hearing on appellant=s motion and appellant did not attend, nothing in the United States or Texas constitutions compels an inmate’s presence at a post-conviction DNA testing proceeding. See Cravin, 95 S.W.3d at 510. Quite the contrary, like Aan applicant for post-conviction writ of habeas corpus, an applicant for a post-conviction DNA proceeding enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing.” Id. (citing Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000)).
The Cravin court also held the State is not required to file affidavits with its response. Id. at 509. We agree with the First Court of Appeals that the State=s affidavits were unnecessary to the trial court’s determination of appellant’s motion and conclude appellant had no right to be present when the trial court ruled on his motion and no right to confront and cross-examine the witnesses who allegedly “appeared” before the trial court in the State’s affidavits. Thus, we overrule appellant’s first, second, third, fourth, and fifth points of error. See Cravin, 95 S.W.3d at 510B511.
Moreover, we also find appellant=s motion failed to comply with Chapter 64,while the State=s written response was in compliance; thus, we overrule appellant=s sixth point of error as well. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), 64.02(a)(2)(A), 64.02(2)(A) and (B) (Vernon Supp. 2003). Indeed, because the State=s affidavits were unnecessary, the trial court had discretion to deny appellant’s motion with or without them. See Cravin, 95 S.W.3d at 511. Accordingly, there was no requirement, as appellant suggests, that the State determine whether any other agency possessed biological materials or evidence suitable for testing. The State’s written response that no evidence existed was sufficient. See id.
Having overruled all of appellant’s points of error, we affirm the judgment of the trial court below.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed July 10, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant was actually sentenced to confinement in the Texas Department of Corrections; however, a reference in law to the Texas Department of Corrections means the institutional division of the Texas Department of Criminal Justice. See Act of 71st Leg., ch.785, ' 1.19(f), 1989 Tex. Gen. Laws.
[2] Article 64.01(a) provides that “[a] convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. The motion must be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion.” Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Supp. 2003).
[3] The only thing asserted by appellant in his motion for DNA testing was: “I respectfully ask the said court to grant DNA testing for the following reason: Tex. Code Crim. Proc. Ann. arts. 64.01, 64.02, 64.03, 64.04, 64.05, 17.47, and 38.98.”
[4] Article 64.03(a) provides that “a convicting court may order forensic DNA testing only if:
(1) the court finds that
(A) the evidence
(1) still exists and is in a condition making DNA testing possible; and
(2) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.”
Tex. Code Crim. Proc. Ann. art. 64.03(a)(1) and (2) (Vernon Supp. 2003).
[5] Article 64.02 provides that, “[o]n receipt of [a convicted person’s] motion, the convicting court shall:
(1) provide the attorney representing the state with a copy of the motion; and
(2) require the attorney representing the state to:
(A) deliver the evidence to the court, along with a description of the condition of the evidence; or
(B) explain in writing to the court why the state cannot deliver the evidence to the court.”
Tex. Code Crim. Proc. Ann. arts. 64.02(1) and (2) (Vernon Supp. 2003).
[6] Although the State’s response was omitted from the clerk’s record, the parties to this appeal have agreed in a written stipulation that the copy of the State=s response attached to the State’s brief is an accurate representation of the State’s response. See Tex. R. App. P. 34.5(e). It is therefore now a part of the appellate record in this appeal.