Opinion issued April 12, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00375-CR
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MICHAEL SCOTT TONEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 9403369
MEMORANDUM OPINION
Pro se appellant, Michael Scott Toney, challenges the convicting court’s order denying his motion for post-conviction DNA testing filed pursuant to Chapter 64 of the Code of Criminal Procedure. Appellant identifies six issues on appeal. He claims (1) in four issues that the convicting court erred by not ruling in his favor at the Chapter 64 hearing on matters pertaining to appellant’s desire to compel the testimony of an absent witness, who appellant claims has knowledge regarding DNA testing previously completed in the case; (2) the convicting court “testified” at the hearing; and (3) the convicting court erred by believing the State’s witness and finding that no evidence containing biological material is available for DNA testing.
We affirm.
Background
In 1993, a jury found appellant guilty of burglary of a habitation with the intent to commit the offense of aggravated assault and assessed his punishment at 40 years. This Court affirmed his conviction on direct appeal. See Toney v. State, No. 01–94–00239–CR, 1996 WL 183411 (Tex. App.—Houston [1st Dist.] Apr. 18, 1996, pet. dism’d untimely filed) (not designated for publication).
In 2009, the convicting court granted appellant’s motion for appointment of counsel to assist in filing a post-conviction motion for DNA testing. Appellant filed his motion in December 2009. In the motion, appellant requested to examine “pertinent evidence or samples . . . taken from the scene of the crime” that was not “previously subjected to DNA testing.”
The convicting court granted appellant’s request for an evidentiary hearing on the motion. The hearing was held on June 28, 2010. Appellant’s counsel and the State’s counsel attended the conference with appellant attending via live video feed.
At the hearing, the State presented the testimony of Barbara Anderson, the post-trial exhibit clerk for the Harris County District Clerk’s Office. Anderson testified that her office’s records indicate that, following appellant’s trial, on March 1, 1994, a number of physical, non-documentary, items, which had been admitted at appellant’s trial, were received by the district clerk’s office from the court reporter. These items included a blue nylon bag, white plastic flex grips, bathroom cleaner, a carpet knife, a hammer, a white nylon cord, and waterproof tape.
Anderson described the actions she took to locate the physical items for purposes of the DNA hearing. She stated that, although she searched for the items “very intensely,” she was unable to locate any of them. She explained that before 2000, it was her office’s policy to permit destruction of such items. Anderson stated that she strongly believed these items had been destroyed, pursuant to this policy, even though she did not find any record of the destruction.
The State also introduced the affidavits of the property-and-evidence records custodians for the Harris County Sheriff’s Office, the Houston Police Department, the HPD crime laboratory, and the HPD latent print laboratory. Each affiant testified that his or her department possesses no evidence related to appellant’s case.
Appellant did not call any witnesses at the hearing. Appellant’s attorney informed the convicting court that he had issued a subpoena to a person identified as “Sergeant G. Glenn” with the Houston Police Department. Sergeant Glenn did not appear at the hearing. Appellant’s counsel stated that he did not know whether Sergeant Glenn had been served with the subpoena. The court enquired why Sergeant Glenn had been subpoenaed. Appellant and his counsel explained to the convicting court that Sergeant Glenn had been an investigating officer early in the case in 1993. Appellant stated that Sergeant Glenn facilitated the taking of a blood sample from him at the police laboratory for the purpose of DNA analysis. Although he was aware of Sergeant Glenn’s involvement, appellant claimed that he did not know Sergeant Glenn’s name at the time of the investigation. He claimed that neither Sergeant Glenn’s identity nor the results of any DNA analysis on the blood samples were disclosed to his trial counsel in 1993. Rather, appellant claimed that he did not discover Sergeant Glenn’s identity or confirm that DNA testing had been performed on the blood samples until 2007.
The State’s attorney informed the court that he believed that the blood samples had been taken from appellant as part of an investigation regarding another case for which appellant was a suspect. In other words, the samples and any DNA testing were not related to or useful to the instant case.
Because the video feed allowing appellant to participate was disconnected before the end of the hearing, the convicting court continued the hearing until July 16, 2010. At the continuation, appellant and his counsel informed the convicting court that appellant had filed a pro se motion entitled “Motion to Confront and Question a Witness.” However, the motion does not appear in the record. With respect to the motion, appellant orally requested the convicting court to allow him to question Sergeant Glenn regarding the blood samples taken from appellant and subjected to DNA analysis in 1993. At the end of the hearing, appellant’s counsel stated to the convicting court, “Just to make sure the record is clear, that the Court is going to disallow the testimony of that witness, that officer that I had subpoenaed at the first setting here?” The court responded in the affirmative.
Appellant then reiterated to the convicting court that Sergeant Glenn had been an investigating officer and had facilitated the taking of blood samples for DNA analysis in this case, not another case. Appellant indicated to the court that the complainant in this case had scratched her attacker and that samples had been taken from him for comparison.
The convicting court signed an order denying appellant’s motion for DNA testing. The convicting court made clear at the hearing that it would have granted appellant’s motion for DNA testing if there had been biological material available for testing. The court stated that it denied the motion because no evidence for biological testing was located.
In support of its denial, the convicting court adopted the proposed findings of fact and conclusions of law offered by the State. Among the findings is the following:
The Court finds, based on the credible hearing testimony of Barbara Anderson [post-trial exhibit clerk for the Harris County District Clerk’s Office] and the credible affidavits of [records custodians] Glenda Adkins, Vanessa Alvarez, Cheryl C. Hurts, and Q. Thigpen, that Defendant fails to meet the requirement of Article 64.03(a)(1) of the Texas Code of Criminal Procedure by showing that evidence containing biological material still exists and is in a condition making DNA testing possible.
Appellant now appeals the convicting court’s order denying his motion for DNA testing. Appellant presents six issues.
Purpose of Chapter 64
Appellant’s first, second, and third issues pertain to appellant’s desire to question Sergeant Glenn regarding appellant’s claim that, in 1993, Sergeant Glenn directed that blood samples be taken from appellant and subjected to DNA analysis in this case. Appellant asserts that the convicting court erred when it (1) denied his pro se motion to “confront and to question” Sergeant Glenn; (2) determined that a Chapter 64 hearing is not “the proper proceeding to admit documental evidence that may prove that DNA tests were performed in this case in the past”; and (3) concluded that Sergeant Glenn’s “testimony concerning his past involvement in the forensic investigation of this case was not relevant to the current Article 64.01 proceedings.” Underpinning all of these issues is whether a motion filed pursuant to article 64.01 of the Code of Criminal Procedure is the proper procedural vehicle to obtain possibly exculpatory evidence, regarding previously performed DNA testing, not disclosed to appellant at the time of his trial.
Appellant does not contend that the blood or other biological samples obtained at Sergeant Glenn’s direction are still available for testing. To the contrary, such claim was refuted by the testimony of Barbara Anderson and the affidavits of the records custodians, which show that no biological evidence has been located for testing in this case and which the trial court found to be credible. As briefed on appeal, appellant appears to be seeking evidence relating to the test results of the DNA analysis he claims was performed in 1993.
The Court of Criminal Appeals has stated, “Chapter 64 authorizes the convicting court to order DNA testing, and no more.” Wolfe v. State, 120 S.W.3d 368, 372 (Tex. Crim. App. 2003); see Ex parte Tuley, 109 S.W.3d 388, 391 (Tex. Crim. App. 2002) (explaining the limited purpose of Chapter 64). To be entitled to post-conviction DNA testing, a convicted person must meet the requirements of articles 64.01 and 64.03.[1]
As it existed in at the time appellant filed his motion, article 64.01(b)(1) provided that a person could request the convicting court to permit forensic DNA testing of previously untested evidence containing biological material that was in the State’s possession during trial of the offense if he could show that the evidence was not previously subjected to DNA testing: (A) because DNA testing was (i) not available; or (ii) available, but not technologically capable of providing probative results; or (B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing. See Act of April 5, 2001, 77th Leg., R.S., ch. 2, § 2, 2001 Tex. Gen. Laws 2, 2–4 (amended 2011) (current version at Tex. Code Crim. Proc. Ann. art. 64.01(b)(1) (Vernon Supp. 2011)).
The convicted person also could seek to re-test biological evidence previously subjected to DNA testing if he could establish that it could be “subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.” See id. art. 64.01(b)(2) (Vernon Supp. 2011). If one or more of the items that an appellant seeks to subject to post-conviction DNA testing meet any of these criteria, the trial court could order testing—but only if other statutory predicates are also met, such as a finding by the convicting court that the evidence “still exists and is in a condition making DNA testing possible.” See id. art. 64.03(a)(1)(A)(i) (Vernon Supp. 2011).
Given the purpose, scope, and plain language of the statute, Chapter 64 does not provide a procedural vehicle for obtaining potentially exculpatory evidence pertaining to DNA test results, from an earlier performed DNA analysis, that were not previously disclosed to appellant. As stated, “Chapter 64 authorizes the convicting court to order DNA testing, and no more.” See Wolfe, 120 S.W.3d at 372. Appellant has not shown that the convicting court erred with respect to its rulings related to the evidence appellant sought to obtain through Sergeant Glenn.[2]
We overrule appellant’s first, second, and third issues.
Compelling Sergeant Glenn’s Testimony
In his fifth issue, appellant asserts that the convicting court erred “by refusing to force [Sergeant Glenn] to honor the issued subpoena and present for inspection the documents and files that were requested in the subpoena.”[3] The Code of Criminal Procedure requires a defendant to file an application for a subpoena with the trial court’s clerk if the defendant wants to ensure the witness’s presence. Tex. Code Crim. Proc.Code Ann. art. 24.03(a) (Vernon 2009). The defendant must then properly serve the witness. See id. art. 24.04(a) (Vernon 2009).
If the witness ignores the “duly served” subpoena, the requesting party shall be entitled to a writ of attachment “commanding some peace officer to take the body of a witness and bring him before such court . . . on a day named . . . to testify in behalf of the State or of the defendant.” Id. art. 24.11 (Vernon 2009); see id. art. 24.12 (Vernon 2009); see also Rodela v. State, 829 S.W.2d 845, 848 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). However, a defendant is not entitled to a writ of attachment if he does not properly serve the subpoena on the witness. Ford v. State, 14 S.W.3d 382, 391–92 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
As pointed out by the State, appellant’s counsel informed the convicting court that he did not know whether the subpoena had been served on Sergeant Glenn. Without establishing that Sergeant Glenn had been served with the subpoena, appellant has failed to show that he was entitled to compel the officer’s appearance. The trial court did not err “by refusing to force [Sergeant Glenn] to honor the issued subpoena,” as appellant claims.
We overrule appellant’s fourth issue.
Convicting Court’s Comments
In his fourth issue, appellant contends that the convicting court abused its discretion by “literally testifying for [Sergeant Glenn], at the second session of the hearing.”
As discussed, the convicting court continued the Chapter 64 hearing because the video feed allowing appellant to attend was disconnected. At the beginning of the second phase of the hearing, the convicting court summarized what had occurred at the earlier hearing and engaged in discussions with the attorneys to gain an understanding of Sergeant Glenn’s involvement in the case. The record does not reflect that the convicting court deviated from its role as a neutral arbiter, as appellant intimates.
In any event, as pointed out by the State, appellant did not object to any of the statements by the trial court of which he now complains on appeal. Absent a timely and specific objection to the improper comments, any error was waived. See Tex. R. App. P. 33.1(a); Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983) (holding that any error in trial court’s comments is waived absent an objection).
We overrule appellant’s fourth issue.
Finding of No Available Evidence for Testing
In his sixth issue, appellant contends that the convicting court erred in finding the testimony of Barbara Anderson, post-trial exhibit clerk for the Harris County District Clerk’s Office, to be credible. Appellant contends that the convicting court should not have believed Anderson’s testimony regarding her efforts to locate the requested physical evidence or her conclusion that the district clerk’s office no longer possesses any physical non-documentary evidence for the instant case.
In reviewing the convicting court’s Chapter 64 rulings, this Court gives “almost total deference” to the convicting court’s findings of historical fact and application-of-law-to-fact issues that turn on witness credibility and demeanor. See Routier v. State, 273 S.W.3d 241, 246 (Tex. Crim. App. 2008). In addition to the deference we pay to the convicting court’s credibility determinations, we note that Anderson’s testimony showed that she engaged in a detailed and thorough search for the physical evidence in this case and that she was familiar with the retention and destruction policies of the district clerk’s office. Anderson’s testimony sufficiently supports the convicting court’s finding that there presently exists no evidence containing biological material for DNA testing. See Baranowski v. State, 176 S.W.3d 671, 676 (Tex. App.—Texarkana 2005, pet. ref’d) (holding that convicting court properly denied appellant’s motion for post-conviction DNA testing because record supported finding that no evidence containing biological material capable of DNA testing existed); Lopez v. State, 114 S.W.3d 711, 717 (Tex. App.—Corpus Christi 2003, no pet.) (same).
We overrule appellant’s sixth issue.
Conclusion
We affirm the order of the convicting court denying appellant’s motion for DNA testing.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Since its enactment, Chapter 64 has undergone several amendments, most recently in 2011. The effective date of the most recent amendments is September 1, 2011. See Act of June 17, 2011, 82nd Leg., R.S., ch. 278, § 5, 2011 Tex. Gen. Laws 882, 884; Act of June 17, 2011, 82nd Leg., R.S., ch. 366, § 1, 2011 Tex. Gen. Laws 1015, 1015–16. Appellant filed his DNA motion in December 2009. Thus, the 2011 amendments do not apply.
[2] Appellant has attached numerous documents to his appellate brief that are not part of the record. Because the documents are not part of the appellate record, we may not consider them in resolving appellant’s issues. See Raspberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (documents attached to pro se supplemental brief not part of record and cannot be considered by appellate court); Booth v. State, 499 S.W.2d 129, 135 (Tex. Crim. App. 1973) (appellate court is not authorized to consider documents attached to appellate brief that are not part of the record).
[3] Appellant contends that he was denied his constitutional right to compulsory process when the convicting court did not compel Sergeant Glenn’s appearance. Under both the United States Constitution and the Texas Constitution, a defendant generally has a right to compulsory process in order to call witnesses to testify on his behalf. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10. However, the Court of Criminal Appeals has made clear that the constitutional protections afforded defendants in criminal trials do not apply to Chapter 64 proceedings. See Ex parte Gutierrez, 337 S.W.3d 883, 892–93 (Tex. Crim. App. 2011) (“First, because a person’s effort to secure testing under Chapter 64 does not involve any constitutional considerations, the trial judge could properly consider the accomplices’ statements. Although evidence offered against a defendant at a criminal trial and challenged on constitutional grounds must be admissible to give adequate protection to the values that exclusionary rules are designed to serve, a Chapter 64 proceeding is not a ‘criminal trial.’ Rather, it is an independent, collateral inquiry into the validity of the conviction, in which exclusionary rules have no place, and there are no constitutional considerations. Article 64.03 does not require any evidentiary hearing before the trial judge decides whether a convicted person is entitled to DNA testing. And, if a hearing is held, the convicted person has no right to be present, no right to confront or cross-examine witnesses, and no right to have hearsay excluded or an affidavit considered.”); see also Thompson v. State, 123 S.W.3d 781, 784–85 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“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.”) (citations omitted).