Affirmed and Memorandum Opinion filed March 29, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00317-CR
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LUCIOUS RAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 263,473
M E M O R A N D U M O P I N I O N
In two issues, appellant Lucious Ray Johnson challenges the trial court=s denial of his postconviction motion for DNA testing. We affirm.
Appellant was convicted of aggravated rape in 1978 and sentenced to ninety-nine years= confinement. On March 30, 2004, appellant filed a motion for DNA testing pursuant to article 64.01 of the Texas Code of Criminal Procedure, urging DNA testing of all evidence secured in relation to the offense, which included a rape kit. See Tex. Code Crim. Proc. Ann. art. 64.01 (Vernon 2006). The State filed a motion to deny DNA testing, asserting that appellant was not entitled to DNA testing because he did not show that the evidence existed in a condition making DNA testing possible. See id. art. 64.03(a)(1)(A)(i) (Vernon 2006). The State contended that none of the courts or law enforcement agencies involved in the case possessed the requested evidence and, in support, attached affidavits of representatives from the Harris County District Clerk=s Office, Houston Police Department Property Room, and Houston Police Department Crime Laboratory, and of the trial court=s court reporter. After hearing the evidence, the court denied appellant=s motion, and this appeal followed.
We review the trial court=s decision to deny DNA testing under a bifurcated standard of review. See Whitaker v. State, 160 S.W.3d 5, 8 (Tex. Crim. App. 2004). We defer to the trial court=s determination of issues of historical fact and application‑of‑law‑to‑fact issues that turn on credibility and demeanor, while we review de novo other application‑of‑law‑to‑fact issues. Id. Employing this standard, we defer to a trial court=s finding as to whether the claimed DNA evidence exists and exists in a condition capable of testing. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002).
Appellant first contends that, after he Araised [the issue]@ that evidence existed in a condition suitable for DNA testing, the State failed to meet its burden to demonstrate that it no longer possessed such evidence. Appellant complains the State=s affidavits were insufficient to disprove that other law enforcement agencies within the convicting county=s territorial boundaries have the requested evidence. We, along with other courts, have consistently rejected this argument under similar facts and accordingly overrule appellant=s first issue. See, e.g., Caddie v. State, 176 S.W.3d 286, 287 (Tex. App.CHouston [1st Dist.] 2004, pet. ref=d.) (AChapter 64 does not require the State to obtain an affidavit of no testable evidence from every laboratory and police agency in the region.@); Mearis v. State, 120 S.W.3d 20, 25 (Tex. App.CSan Antonio 2003, pet. ref=d) (A[T]he State did not need to show that no other agency possessed evidence suitable for testing.@); Thompson v. State, 123 S.W.3d 781, 786 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (AThe State was not required to obtain affidavits from every criminal justice department in the county as to criminal investigations in which they were not involved.@).
Appellant next claims the State violated his federal constitutional due process rights because the State could not account for the absence of evidence. Appellant reasons that the State should not benefit from misplacing, hiding, or possibly destroying evidence by subsequently arguing the defendant failed to meet its burden under article 64.03, particularly in light of its duty to preserve evidence under article 38.43 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.43(a) (Vernon Supp. 2006). Here, the State had to search for evidence over twenty-five years old, and it submitted affidavits from four entities stating they did not have the evidence. Viewing the record before us under the appropriate deferential standard of review, we do not find that the trial court erred in finding that no evidence existed capable of DNA testing. See Hurley v. State, No. 05‑06‑00034‑CR, 2006 WL 3528668, at *1 (Tex. App.CDallas Dec. 8, 2006, no pet.) (not designated for publication) (finding no due process violation in trial court=s determination that no evidence capable of DNA testing existed where appellant complained trial court failed to require State to search Amore diligently@ for evidence because evidence in question was over twenty-five years old, and State submitted letters from three agencies stating each did not have evidence). See generally Cravin v. State, 95 S.W.3d 506, 511 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (noting that Athere is nothing fundamentally unfair about the procedures set out in chapter 64@ in overruling due process complaint regarding appellant=s absence from motion hearing). Moreover, to the extent appellant suggests the State has destroyed the evidence in violation of article 38.43, we do not have jurisdiction to consider such contention on appeal from a denial of a postconviction motion for DNA testing. See Chavez v. State, 132 S.W.3d 509, 510 (Tex. App.CHouston [1st Dist.] 2004, no pet.) (dismissing appeal from denial of postconviction DNA testing for want of jurisdiction because appellant=s due process claim for State=s alleged destruction of DNA evidence did not attack findings of trial court but amounted to request for habeas relief); Johnson v. State, No. 14‑02‑01012‑CR, 2003 WL 751021, at *1 (Tex. App.CHouston [14th Dist.] Mar. 6, 2003, no pet.) (not designated for publication) (noting that appellant did not invoke jurisdiction of appellate court where, on appeal from denial of postconviction motion for DNA testing, he complained of constitutional deprivation for State=s failure to preserve DNA evidence for testing because such amounted to request for habeas relief). We overrule appellant=s second issue.
We affirm the trial court=s judgment.
/s/ Leslie B. Yates
Justice
Judgment rendered and Memorandum Opinion filed March 29, 2007.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).