Affirmed and Memorandum Opinion filed April 6, 2006.
In The
Fourteenth Court of Appeals
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NO 14-05-00446-CR
NO 14-05-00447-CR
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MICHAEL JEROME EDWARDS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 827,178 & 862,982
M E M O R A N D U M O P I N I O N
Michael Jerome Edwards appeals two orders in two cases, consolidated for this appeal, denying his motion for post-conviction DNA testing in each case on the grounds that: (1) conducting a hearing on his motions without appellant being present and by use of affidavits violated his constitutional rights; and (2) the State=s affidavits were inadmissible because they contained hearsay. We affirm.
In 2001, appellant was convicted of both improper sexual activity with a person in custody and sexual assault and sentenced to two years and ten years confinement for the two offenses, respectively.[1] In 2005, appellant filed motions for DNA testing in both cases. The trial court denied appellant=s motions.
Appellant=s first four issues contend that the trial court violated his constitutional rights to due process, confrontation, and cross-examination by: (1) conducting a hearing on his motions for post-conviction DNA testing without appellant being present; and (2) allowing the State=s evidence to be provided by affidavit without allowing appellant an opportunity to cross-examine the affiants.
A motion for DNA testing must be accompanied by a sworn affidavit containing statements of fact in support thereof. Tex. Code Crim. Proc. Ann. art. 64.01(a) (Vernon Pamphlet 2005).[2] In this case, appellant=s motions were not accompanied by such a sworn affidavit. Id. art. 64.01(a). Therefore, the trial court did not err in denying them.
In addition, a hearing is not required on a motion for post-conviction DNA testing.[3] Here, it does not appear that the trial court held an evidentiary hearing on the motions because: (1) the court's order denying appellant's written objections to the proceedings and evidence reflects that appellant=s counsel was present and agreed to waive the presence of a court reporter; and (2) the order indicates that all issues of fact would be resolved on the basis of the affidavits filed with the court. Therefore, the record does not reflect that any witnesses testified so as to invoke any right of confrontation or cross-examination. In addition, because this type of proceeding, unlike a criminal trial, does not involve accusations against the applicant, it does not implicate a confrontation clause right or a right to be present at the hearing.[4] Because appellant has thus not established a federal or state constitutional right to be present, confront, or cross-examine witnesses in a post-conviction DNA testing proceeding,[5] his first through fourth issues are overruled.
Appellant=s fifth issue argues that the trial court erred by relying on evidence contained in the affidavits submitted by the State[6] because the documents constituted inadmissible hearsay in violation of the Texas Rules of Evidence. However, this contention has already been expressly rejected by this court.[7] Accordingly, appellant's fifth issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed April 6, 2006.
Panel consists of Justices Anderson, Edelman, and Seymore. (Seymore, J., concurs in result only).
Do not publish C Tex. R. App. P. 47.2(b).
[1] This court affirmed both judgments in Edwards v. State, 97 S.W.3d 279 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).
[2] Upon receipt of the motion, the convicting court must provide the State's attorney with a copy and require the State either to: (1) deliver the evidence to the court; or (2) explain why it cannot do so. Tex. Code Crim. Proc. Ann. art. 64.02(2)(A)‑(B) (Vernon Pamphlet 2005). The court may then order DNA testing upon certain findings set forth in article 64.03. See id. art. 64.03.
[3] Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004), cert. denied, 543 U.S 864 (2004); Rivera v. State, 89 S.W.3d 55, 58‑59 (Tex. Crim. App. 2002) (contrasting article 64.03 with article 64.04, which specifically requires a hearing).
[4] See Thompson v. State, 123 S.W.3d 781, 784 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d); Cravin v. State, 95 S.W.3d 506, 510 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d); see also Ex parte Mines, 26 S.W.3d 910, 914 (Tex. Crim. App. 2000).
[5] Thompson, 123 S.W.3d at 785; see also Cravin, 95 S.W.3d at 510-11.
[6] The trial court=s findings of fact refer to the State=s affidavits.
[7] Thompson, 123 S.W.3d at 785.