Affirmed and Memorandum Opinion filed May 24, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00310-CR
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EUGENE SHANNON ABNER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 610227
M E M O R A N D U M O P I N I O N
In 1992, appellant, Eugene Shannon Abner, was convicted of aggravated sexual assault of a child. In 2004, he filed a post-conviction motion for DNA testing of evidence containing biological material under chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 64.01-.05 (Vernon Supp. 2006). The State responded with affidavits, discussing whether testable material exists, whether any changes have occurred regarding testing techniques, and whether identity was at issue in the case. The trial court denied the motion. On appeal, appellant contends that the trial court violated his United States and Texas constitutional rights by (1) conducting a hearing on the DNA motion in his absence and (2) denying him the opportunity to confront and cross-examine the witnesses against him, citing U.S. Const. amend. VI, XIV; Tex. Const. art. I ' 10. We affirm.
Discussion
Before a trial court can order DNA testing under chapter 64, it must find that (1) evidence still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected to a proper chain of custody; and (3) identity is an issue in the case. Tex. Crim. Proc. Code Ann. art. 64.03(a)(1). Additionally, a movant must establish by a preponderance of the evidence that (1) he or she would not have been convicted if exculpatory results had been obtained through DNA testing; and (2) the request is not made to unreasonably delay the sentence. Id. art. 64.03(a)(2). We review the trial court=s ruling under a de novo standard. Wilson v. State, 185 S.W.3d 481, 484 (Tex. Crim. App. 2006).
In a case with very similar procedural facts, we previously rejected the argument that a movant for post-conviction DNA testing has a right either to be present or to cross-examine witnesses at a hearing on the motion. Thompson v. State, 123 S.W.3d 781, 784-85 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (citing Craven v. State, 95 S.W.3d 506, 509-10 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d)). Specifically in regard to the movant=s absence, we stated:
Unlike a criminal trial, a chapter 64 proceeding such as this one does not implicate an appellant=s confrontation‑clause rights because this type of proceeding does not necessarily involve any witnesses or accusations against the appellant. Rather, as set forth in chapter 64, the proceeding involves a motion made by the applicant followed by the State=s non‑accusatory response required under the statute. This type of proceeding is analogous to a habeas corpus proceeding in that it is an independent, collateral inquiry into the validity of the conviction. Therefore, as in a post‑conviction writ of habeas corpus proceeding, an applicant for a post‑conviction DNA analysis enjoys neither a presumption of innocence nor a constitutional right to be present at a hearing. Moreover, according to the record, appellant was represented by appointed counsel at the time of the hearing. Because it was not fundamentally unfair for the trial court to hold the post‑conviction hearing in appellant=s absence when appellant was represented by counsel, we find no violation of appellant=s due‑process rights. Therefore, the trial court did not violate appellant=s federal or state constitutional rights when it conducted a post‑conviction hearing in appellant=s absence, if indeed it did so.
Id. In regard to rights of confrontation and cross-examination, we stated that these rights did not apply in a post-conviction DNA proceeding for the same reasons that the right to be present did not apply. Id. at 785.
Here, appellant in essence argues that the Thompson case was wrongly decided because a post-conviction DNA proceeding is in fact not analogous to a habeas corpus proceeding.[1] Appellant urges that a DNA proceeding does not focus on a collateral matter, as a habeas corpus proceeding does, but directly involves the issue of guilt or innocence, as does a hearing on a motion for new trial. We find appellant=s argument to be without merit. As stated in Thompson, a DNA proceeding Adoes not necessarily involve any witnesses or accusations against the appellant. . . . [I]t is an independent, collateral inquiry into the validity of the conviction.@ Id. at 784. That fact is amply demonstrated in the present case, just as it was in Thompson, because the State=s response to the motion discusses whether testable material exists, whether any changes have occurred in testing techniques, and whether identity was at issue, but does not directly accuse appellant of anything or attempt to prove that appellant did anything.[2] Accordingly, we confirm our reasoning in Thompson.
Appellant=s four issues are overruled.
We affirm the trial court=s order.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Opinion filed May 24, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant does not cite the Thompson case, but does cite and attack the First Court of Appeals= Craven decision, on which the analysis in Thompson was largely based. See Thompson, 123 S.W.3d at 784-85 (citing Craven, 95 S.W.3d at 509-10). The circumstances, arguments, and analyses are substantially similar in the two cases.
[2] The State did attach to its response two accusatory affidavits from 1991, from the complainant and a witness, but it is clear that these affidavits were used to show that identity was not at issue in the case not to prove appellant=s guilt.