Affirmed, in Part, and Dismissed, in Part, and Opinion filed May 1, 2003.
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In The
Fourteenth Court of Appeals
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NO. 14-02-00663-CR
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CARL WILLIAM JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 345,166
O P I N I O N
Appellant, Carl William Johnson, appeals from the trial court=s denial of his motion for postconviction DNA testing. In two points of error, appellant complains (1) the trial court abused its discretion by granting the States=s motion to deny forensic DNA testing, and (2) Chapter 64 of the Code of Criminal Procedure violates due process. We affirm, in part, and dismiss, in part.
In 1982, appellant was convicted of aggravated rape and sentenced to 60 years= confinement in the Institutional Division of the Texas Department of Criminal Justice. On July 9, 2001, appellant filed pro se a postconviction motion for DNA testing.[1] See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon Supp. 2003). On July 25, 2001, the trial court appointed counsel to represent appellant. On February 19, 2002, appellant=s counsel filed a second motion for postconviction DNA testing. On May 7, 2002, the State filed a motion requesting the denial of DNA testing, in which it asserted that it could not produce the evidence because it does not exist. See Tex. Code Crim. Proc. Ann. art. 64.02 (Vernon Supp. 2003). The trial court denied appellant=s request for DNA testing and issued findings of fact and conclusions of law.
In his first issue, appellant claims the trial court abused its discretion in denying his request for DNA testing. Appellant requested DNA testing of the biological evidence contained in the “rape kit” collected by the police. The State presented three affidavits in support of its motion. Appellant argues the affidavits are not sanctioned by Chapter 64 and, thus, are not competent evidence on which to deny relief. When the State offered the affidavits into evidence at the hearing on the motion for DNA testing, appellant=s counsel stated, “Your Honor, I have already inspected the items and have no objection.” In the absence of any objection to the affidavits, appellant has waived this issue on appeal. See Tex. R. App. P. 33.1
Even if appellant had not waived this complaint on appeal, he cannot prevail. Upon receipt of the motion, article 64.02 requires the State to deliver the evidence to the court or explain in writing why it cannot do so. Tex. Code. Crim. Proc. Ann. art. 64.02(2)(A),(B). The trial court, therefore, was authorized to consider the affidavits tendered by the State. Moreover, in determining whether the evidence exists, the convicting court may make that determination based on the sufficiency of the appellant=s affidavit and the State=s written response. Rivera v. State, 89 S.W.3d 55, 58B59 (Tex. Crim. App. 2002); Cravin v. State, 95 S.W.3d 506, 511 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).
Appellant further complains the affidavits submitted by the State in support of its response do no more than suggest that the 184th District Court has possession of the rape kit. To the contrary, included in the record is the affidavit of Melchora Vasquez, the Exhibits Clerk for the Harris County District Clerk=s Office, stating that the records of the Harris County District Clerk=s office do not reflect that any evidence from appellant=s case is in its possession. Appellant=s first issue is overruled.
In his second issue, appellant claims Chapter 64 is unconstitutional because it violates due process by failing to recognize the State=s duty to preserve potentially useful evidence. We find appellant=s constitutional claim is outside the scope of an appeal from the denial of a motion for DNA testing and, instead, seeks habeas relief. Watson v. State, 96 S.W.3d 497, 500 (Tex. App.CAmarillo 2002, pet. ref=d) (finding appellant=s claim that State=s failure to preserve biological material denied him due process of law was request for application for writ of habeas corpus). We do not have original habeas corpus jurisdiction in criminal cases. Tex. Gov=t Code Ann. ' 22.221 (Vernon Supp. 2003); Ex parte Ustick, 9 S.W.3d 922, 924 (Tex. App.CWaco 2000, no pet); Ex parte Hawkins, 885 S.W.2d 856, 588 (Tex. App.CEl Paso 1994, no pet.). In the absence of jurisdiction over appellant=s constitutional claim, appellant=s second issue is dismissed.[2]
We affirm the judgment of the trial court with respect to appellant=s first issue. With respect to appellant=s second issue, we dismiss for lack of jurisdiction.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed May 1, 2003.
Panel consists of Justices Yates, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Under Article 64.01, a convicted person may submit a motion to the convicting court requesting DNA testing of evidence containing biological material that was in the State=s possession during trial. Tex. Code Crim. Proc. Ann. art. 64.01(a); Dinkins v. State, 84, S.W.3d 639, 641B42 (Tex. Crim. App. 2002). 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). For evidence that was not previously subjected to DNA testing, the convicted person must show in his motion that DNA testing was not available; DNA testing was available but not technologically capable of providing probative results; or through no fault of the convicted person, the evidence was not tested but requires testing in order to satisfy the interest of justice. Id. at art. 64.01(b)(1)(A),(B); Dinkins, 84 S.W.3d at 642.
[2] Even if we had jurisdiction over appellant=s constitutional claim, appellant waived this complaint on appeal by failing to raise it in the trial court. Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002) (finding defendant waived due process complaints when raised for first time on appeal); Tex. R. App. P. 33.1. Moreover, even if appellant had not waived this issue for appellate review, he cannot prevail. Unless the defendant can demonstrate bad faith on the part of the State, failure to preserve potentially useful evidence does not constitute a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Ex parte Brandley, 781 S.W.2d 886, 894 (Tex. Crim. App. 1989). Appellant has failed to allege any bad faith on the part of the State. Instead, appellant merely argues that Chapter 64 Apermits the State to lose evidence with impunity@ and further Aencourages the loss or destruction of evidence . . .@