Affirmed and Memorandum Opinion filed April 8, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01297-CR
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EARL SILAS BINGLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 407,360
M E M O R A N D U M O P I N I O N
This is an appeal from the denial of appellant=s post-conviction motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. Appellant brings three issues challenging the trial court=s findings and his appointed counsel=s representation. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.
Background
In May of 2002, appellant filed a post-conviction motion for DNA testing requesting testing of all biological material in the State=s possession from his trial and conviction in 1985 for aggravated sexual assault of a child.[1] The motion noted that appellant=s defense at trial had been that of alibi and misidentification. Thus, identity of the perpetrator was an issue at trial. The State responded to appellant=s motion and provided affidavits and supporting documentation that the evidence had been destroyed. The trial court made findings that neither the Houston Police Department Crime Lab nor the Harris County District Clerk=s Office had evidence from this case. The court also found appellant had failed to meet his burden to establish that evidence containing biological material still exists and is in a condition making DNA testing possible and that he would not have been prosecuted or convicted if exculpatory results had been obtained. Accordingly, the court denied testing by written order containing its findings and conclusions signed July 18, 2003. Appellant filed a timely, written notice of appeal.
Standard of Review and Applicable Law
We review a trial court=s decision to deny a motion for post-conviction DNA testing under a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). Accordingly, we afford almost total deference to the trial 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. Id. However, we review de novo the ultimate question of whether the trial court was required to grant a motion for DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. See id.
Before post-conviction DNA testing may be ordered, certain criteria set forth in the statute must be established:
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) 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.
Act of April 5, 2001, 77th Leg. R.S., ch. 2, ' 2, 2001 Tex. Gen. Laws 2 (amended 2003) (current version at Tex. Code Crim. Proc. Ann. art. 64.03(a) (Vernon Supp. 2004)).[2] By its explicit terms, Chapter 64 does not require the trial court to grant a request for DNA testing unless the statutory preconditions are met. Bell v. State, 90 S.W.3d 301, 306 (Tex. Crim. App. 2002).
Appellant=s Issues
In his first two issues, appellant argues that the trial court erred in finding he did not satisfy the conditions of article 64.03 of the Code of Criminal Procedure. Specifically, he asserts that the court erred when it found that no evidence containing biological material existed because the State did not explain the reason for the destruction of evidence. He also asserts the court erred in finding he failed to show a reasonable probability that exculpatory DNA test results would prove his innocence.
Upon the filing of an article 64.01 motion, the trial court is required to provide the State with a copy of the motion. See Tex. Code Crim. Proc. Ann. art. 64.02(1). (Vernon Supp. 2004). The State then is required to either deliver the evidence to the court or explain in writing why it cannot deliver the evidence to the court. Id. art. 64.02(2); Cravin v. State, 95 S.W.3d 506, 509 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). In response to appellant=s motion, the State explained that the evidence from appellant=s trial had been destroyed. The State provided affidavits from the Harris County District Clerk=s Office and the Houston Police Department Crime Lab stating that the requested materials were not in their possession.
The trial court is entitled to make its determination based solely upon appellant=s motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Appellant bears the burden of production or persuasion at each stage under Chapter 64. Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.CDallas 2003, no pet.). Appellant=s motion and affidavit failed to offer any relevant evidence or argument to support its contentions that evidence still exists. The State must explain why it cannot produce the evidence; there is no requirement, however, that the State explain why the evidence was destroyed. A court may order post-conviction DNA testing only if the court finds that the evidence still exists in a condition making DNA testing possible. Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2004). The court found appellant failed to meet his burden to establish this requirement. See Cravin, 95 S.W.3d at 510. We hold the trial court did not err in so finding and overrule appellant=s first issue.
In his second issue, appellant asserts the trial court erred in finding that he failed to establish by a preponderance of the evidence that he would not have been prosecuted or convicted if exculpatory results had been obtained. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(2)(A). The Texas Court of Criminal Appeals has interpreted this part of the statute Ato mean a reasonable probability exits that exculpatory DNA tests will prove a convicted person=s innocence.@ Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002).
In this case, appellant offered no evidence tending to show a reasonable probability that exculpatory DNA testing would prove his innocence. His only assertion is that identity was an issue at trial; therefore, Aexculpatory DNA test results could result in a reasonable probability of the Defendant=s innocence.@ Appellant has not correctly articulated the standard as defined in Kutzner. Appellant must demonstrate that a reasonable probability exists that exculpatory DNA tests will prove his innocence. See id. Any exculpatory inference will not necessarily conclusively outweigh other evidence establishing appellant=s guilt. Rivera, 89 S.W.3d at 60. The complainant positively identified appellant as the perpetrator both in court and at a pretrial lineup. Bingley, No. 14-85-00588-CR, slip op. at 1-2. She testified she knew appellant and had seen him several times before. Id. at 2. Here, without more, any evidence that appellant=s DNA was not present could Amerely muddy the waters.@ See Kutzner, 75 S.W.3d at 439 (recognizing the Act=s legislative history shows it was meant to Aensure that a favorable [DNA] test would show that an inmate is innocent, not merely muddy the waters in the case@). The trial court did not err in denying DNA testing because appellant failed to prove, by a preponderance of the evidence, that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory DNA results had been obtained. We overrule appellant=s second issue.
In his third issue, appellant complains that his appointed counsel rendered ineffective assistance at the hearing on his DNA motion because he failed to request that a court reporter transcribe the hearing. The Texas Court of Criminal Appeals has not decided whether an appellant may raise a claim of ineffective assistance arising from a hearing under Chapter 64. See Bell, 90 S.W.3d at 307. We need not do so in this case. Assuming, arguendo, that such a claim may be raised, to prevail on his claim appellant must first prove, by a preponderance of the evidence, that his counsel's representation fell below the objective standard of professional norms. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984); Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). He must then show that this deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2052. Appellate review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Generally, the record on a direct appeal will be inadequate to determine whether counsel=s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel=s conduct was reasonable and professional. Mitchell, 68 S.W.3d at 642; Mallett, 65 S.W.3d at 64-65.
Here, there is nothing in the record to show that counsel=s conduct was the product of unsound or unreasonable strategy or that there is a fair probability that his conduct led to an unreliable or unjust result. Appellant does not assert that any additional evidence was heard at a hearing. In fact, appellant=s counsel acknowledges in his brief that Aa formal hearing was not held.@ The trial court is entitled to make its determination based solely upon appellant=s motion and supporting affidavit. Rivera, 89 S.W.3d at 58-59. Thus, no hearing is required and no record from a hearing is necessary when the court has based its findings on the parties= affidavits. Our record does not show that the alleged error had any impact on the court=s ruling or our review, nor does it show that a record of the hearing would have made any difference in the outcome of this appeal therefore, we overrule appellant=s third issue.
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed April 8, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] This court affirmed appellant=s conviction. See Bingley v. State, No. 14-85-00488-CR (Tex. App.CHouston [14th Dist.] June 5, 1986, no pet.) (not designated for publication).
[2] The 2003 amendment to article 64.03(a)(2)(A) applies to motions filed on or after September 1, 2003, and are inapplicable here. All subsequent citations will be to the original statute in effect at the time appellant=s motion was filed.