Affirmed and Memorandum Opinion filed March 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00595-CR
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JAMES L. BRYAN a/k/a JAMES L. BRYANT a/k/a ELBERT LEE BRYANT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 262,342
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 six issues challenging the constitutionality of the proceedings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.
Background
On November 21, 2002, appellant filed a post-conviction motion for DNA testing requesting testing of all biological material in the State=s possession from his 1977 trial and conviction for aggravated rape of a child.[1] The trial court appointed counsel to represent appellant. See Tex. Code Crim. Proc. Ann. art. 64.01(c) (Vernon Supp. 2004). The State responded to appellant=s motion and provided affidavits and supporting documentation of the condition of the evidence. The trial court made findings that appellant failed to establish evidence still exists in a condition making DNA testing possible or that a reasonable probability exists that he would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.03(a)(1)(A)(i), 64.03(a)(2)(A) (Vernon Supp. 2004). Accordingly, the court denied testing by written order containing its findings and conclusions signed May 22, 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 four issues, appellant argues the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution by (1) conducting a final hearing on the motion without his presence, and (2) denying him the opportunity to confront and cross-examine witnesses.
The First Court of Appeals considered the same issues in Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d), and held them to be without merit. We have followed the reasoning of our sister court in addressing these issues. See Nunez v. State, 14-02-00684-CR (Tex. App.CHouston [14th Dist.] June 12, 2003, pet. ref=d) (not designated for publication); Calvin v. State, 14-02-01204-CR (Tex. App.CHouston [14th Dist.] October 9, 2003, pet. filed) (not designated for publication). We hold appellant=s claims are groundless and overrule issues one through four.
In his fifth issue, appellant argues that the trial court erred in considering inadmissible hearsay affidavits submitted by the State. No hearing is required before a trial court makes its determination under article 64.03 whether to order forensic DNA testing. See Rivera v. State, 89 S.W.3d 55, 58 (Tex. Crim. App. 2002). The statute specifically contemplates a post-conviction proceeding with submission of affidavits from the applicant and a written response from the State, rather than an evidentiary hearing. See Tex. Code Crim. Proc. Ann. arts. 64.01(a), 64.02(2)(B)(Vernon Supp. 2004). Moreover, the State is not required to file affidavits with its response to an applicant=s motion for DNA testing; the court may reach a decision based solely on the convicted person=s motion and affidavit and the State=s response. Cravin, 95 S.W.3d at 509. Therefore, the trial court=s decision need not be based on the State=s affidavits. We overrule appellant=s fifth issue.
In his sixth issue, appellant contends the trial court erred in denying his motion for DNA testing. Specifically, appellant claims that the State failed to establish that the requested materials were no longer in possession of the State.
Under Chapter 64, appellant bears the initial burden of showing that biological evidence was secured in relation to the underlying offense and was in the State=s possession during trial, but the evidence was not previously tested for DNA. Tex. Code Crim. Proc. Ann. art. 64.03(b) (Vernon Supp. 2004); see also Murphy v. State, 111 S.W.3d 846, 849 (Tex. App.CDallas 2003, no pet.). Appellant alleged that the State possesses previously untested evidence obtained during the investigation of his case, but he failed to identify that evidence. In response to appellant=s motion, the State explained that the requested materials were not in possession of the Harris County District Clerk=s Office or the Houston Police Department. The State provided affidavits to support its contentions.
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 meed his burden to establish this requirement. See Cravin, 95 S.W.3d at 510.[3] We overrule appellant=s sixth issue.
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed March 16, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The Court of Criminal Appeals affirmed appellant=s conviction. See Bryant v. State, No. 58,606, slip op. (Tex. Crim. App. March 25, 1981) (per curiam) (not designated for publication).
[2] The 2003 amendment to article 64.03(a)(2) applies to motions filed on or after September 1, 2003, and are inapplicable here. All subsequent citations will be to the statute in effect at the time appellant=s motion was filed.
[3] Moreover, appellant offered no evidence tending to show a reasonable probability that exculpatory DNA testing would prove his innocence. See Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002). The trial court=s decision could be affirmed on this basis alone.