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THE STATE OF TEXAS, Appellee On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 13674-B MEMORANDUM OPINION Daniel Vasquez Dominguez appeals the trial court's order denying his motion for DNA testing of evidence related to his conviction for aggravated sexual assault of a child. Because we conclude that the trial court did not err by denying the motion, we affirm. Background Facts ""'• Appellant was indicted in 2000 for the offenses of aggravated sexual assault of a child and indecency with a child. On January 8, 2001, he'entered a plea-of no contest to the offense of aggravated sexual assault of-a child. Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt and placed Appellant on community supervision for eight years. The State subsequently filed a motion to adjudicate. The trial court found that Appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and sentenced him to confinement for thirty years. The sentence was imposed in open court on February 10, 2006. Appellant attempted to file a direct appeal from the judgment adjudicating guilt, but we dismissed the appeal for want-of-j-ur-isdiot-ion- beeause-the appeal- was-not- timely filed. On May 15, 2012, Appellant filed a pro se motion in the trial court for postconviction forensic testing. The trial court appointed counsel for Appellant in connection with the motion for postconviction forensic testing. Appointed counsel subsequently filed a motion to withdraw that the trial court granted. Appellant then filed this appeal. Upon our receipt of Appellant's pro se notice of appeal, we entered an order abating the appeal that required the trial court to make various findings. Pursuant to our abatement order, the trial court made the following findings: 1. On July 28, 2000, the trial court determined, that the Appellant was indigent. 2. On February 10, 2006, the trial court revoked Appellant's community supervision, convicted him, and sentenced him to 30 years in prison. The Appellant has remained incarcerated since that time. 3. The trial court has received no information indicating any change in Appellant's financial circumstances. 4. Therefore, the trial court determines that Appellant is still indigent. 5. On May 30, 2012, the trial court appointed Mr. Alex Eyssen to represent Appellant in obtaining DNA testing pursuant to Article 64.01(c), Texas Code of Criminal Procedure. 6. On December 19, 2012, the trial court[] allowed Mr. Eyssen to withdraw because he was closing his law practice and leaving the [Sjtate of Texas. !J":"<. 7. Appellant is not currently represented by counsel. 8. Appellant's attorney did not abandon the appeal; he was allowed to withdraw by the trial court. 9. On October 31, 2012, the trial court issued an order finding that: —The State's (criminal) case was based entirely on witness statements, and —No physical evidence was seized by law enforcement, and —No physical evidence was in possession of the State during the trial of the offense. 10. In the October 31, 2012[] order, the trial court also found that the Appellant was not entitled to DNA testing; and, the trial court declined to order any DNA testing. 11. There are no reasonable grounds for the Appellant to file a motion for forensic DNA testing. 12. New counsel should not be appointed to represent the Appellant on appeal. Upon receipt of the trial court's findings, we reinstated this appeal. Analysis Appellant presents three issues on appeal. In his first issue, Appellant complains of the "denial of assistance of counsel." In support of this issue, he alleges that his appointed counsel was ineffective "assisting in the investigation of evidence filed in another court." Specifically, he contends that counsel did not thoroughly investigate the evidence regarding his victim's "pregnancy" case filed in the 326th District Court of Taylor County.1 In his second issue, he complains of "violations of due process," "ineffective assistance of counsel," and "violation of equal protection of the law." In support of his second issue, he 'Cbritends that trial counsel was ineffective for failing to present evidence from the 326th District Court. In his third issue, Appellant complains of the "denial of forensic, DNA testing hearing by Brady violations of exculpatory evidence related and filed in the 326th District Court." This appeal was brought under Chapter 64 of the Code of Criminal Procedure. This chapter authorizes DNA testing in cases where the applicant meets the relevant requirements. TEX. CODE CRIM. PROC. ANN. art. 64.03 (West Supp. 2014). Chapter 64 also gives appellate courts jurisdiction to review an order by a trial court denying a request for postconviction DNA testing for cases in which the defendant was not given the death penalty. Id. art. 64.05 (West 2006). However, in an appeal from the denial of a request for DNA testing, we may not consider any claims that fall outside the scope of Chapter 64. In re Garcia, 363 S.W.3d 819, 822 (Tex. App.—Austin 2012, no pet.). "Chapter 64 is not an invitation to review every potential error in the underlying trial proceedings; instead, it is simply a procedural vehicle for obtaining evidence 'which might then be used in a state or federal habeas proceeding.'" Id. (quoting Thacker v. State, 111 S.W.3d 926, 927 (Tex. Crim. App. 2005)). A trial court is only required to order DNA testing under Chapter 64 if the relevant statutory requirements are met. Crim. PROC. art. 64.03(a). As noted above, the trial court based its order denying Appellant's request for DNA testing 'The 326th District Court is a "family district court" that by statute "has primary responsibility for cases involving family law matters." TEX. GOV'T CODE ANN. §§ 24.601,24. 634 (West 2004). on the fact that the State's criminal case against Appellant was based entirely on witness statements, that no physical evidence was seized by law enforcement, and that no physical evidence was in possession of the State during the trial of the offense. A convicting court may base its decision regarding a Chapter 64 claim on the sufficiency of the State's written explanation. Caddie v. State, 176 S.W.3d 286, 289 (Tex. App.—Houston [1st Dist.] 2004, pet. ref d). In an appeal ofa trial court's decision regarding a Chapter 64 claim, reviewing courts "defer to the trial court's determination of historical facts, and its application of law to the facts if it turns on credibility and demeanor, and review de novo applications of law to the undisputed facts." Id. Under this standard, reviewing courts "defer to a trial court's finding as to whether the claimed DNA evidence exists and is in a condition to be tested." Id. The clerk's record contains a letter from an assistant district attorney to Appellant's counsel advising him that Appellant's criminal case "was based entirely on witness statements. There was no physical evidence of any kind taken by the police."2 There is also a letter in the clerk's record from Lieutenant David Atkins of the Taylor County Sheriffs Office addressed to the trial court that confirms this same information. In light of the standard of review governing this case and based on the record, we conclude that the evidence is sufficient to support the trial court's determination that no DNA evidence exists. The bulk of Appellant's claims on appeal focus on his efforts to obtain evidence from another proceeding. By its express terms, Chapter 64 only applies to the testing of evidence "that was secured in relation to the offense that is the basis of the challenged conviction." Crim. Proc. art. 64.01(b). Accordingly, Appellant's claims seeking to obtain evidence from another proceeding are beyond "This letter also informs Appellant's counsel that the file in the 326th District Court from which Appellant sought evidence is a "closed and sealed file." the scope of Chapter 64, and the trial court did not err in denying Appellant's request to test the evidence from the family court proceeding. Furthermore, Appellant's claims of ineffective assistance of counsel related to obtaining evidence from the proceeding must also fail because the requested evidence was beyond the scope of Chapter 64. '•"•'. "; Regarding Appellant's request for the appointment of new counsel, Chapter 64 specifies that "[fjhe convicting court shall appoint counsel for the convicted person if the person informs the court that the person wishes to submit a motion under this chapter, the court finds reasonable grounds for a motion to be filed, and the court determines that the person is indigent." Crim. Proc. art. 64.01(c). The trial court initially appointed counsel for Appellant, but subse quently determined that "[tjhere are no reasonable grounds for the Appellant to file a motion for forensic DNA testing." Based upon this determination, the trial court concluded that it was not obligated to appoint new counsel on appeal. In this case, the trial court had evidence that no biological evidence existed that could be tested. That evidence provided sufficient justification for the trial court to determine that there were no reasonable grounds for the Chapter 64 motion to be filed. See Blake v. State, 208 S.W.3d 693, 695 (Tex. Appr—Texarkana 2006, no pet.). Accordingly, we cannot conclude that the trial court erred by failing to grant Appellant's request for the appointment of new counsel. See Ex parte Gutierrez, 337 S.W.3d 883, 891 (Tex. Crim. App. 2011) (stating that courts have found that reasonable grounds are not present if no evidence exists or if it has been destroyed). In his brief, Appellant additionally challenges his original conviction. Chapter 64 does not confer jurisdiction upon this court to entertain collateral attacks on the trial court's judgment of conviction or to review, under the guise of a DNA testing appeal, anything beyond the scope of the request to conduct DNA testing. See Reger v. State, 111 S.W.3d 510, 512-13 (Tex. App.—Fort Worth 2007, pet. refd); Hooks v. State, 203 S.W.3d 861, 866 (Tex: App.—Texarkana 2006, pet. refd). Accordingly, we do not entertain Appellant's challenges to his original conviction. For the foregoing reasons, we overrule Appellant's three issues challenging the district court's decision to deny his request for DNA testing and his request for the appointment of new counsel. This Court's Ruling We affirm the order of the trial court. JOHN M. BAILEY JUSTICE February 27, 2015 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J. *• ^V\av- \ Law Offices of Alex B. Eyssen, pllc Post Office Box 3321 Abilene, Texas 79604 www.eyssenlaw.com Alex B. Eyssen Telephone: (325)267-6030 Alex@eyssenlaw.com Facsimile: (325) 267-6031 September 17, 2012 Honorable Lee Hamilton Judge, 104th District Court 300 Oak Street Abilene, Texas 7.9602 Re: Cause No.13674-B; State of Texas vs. Daniel Dominguez Dear Judge Hamilton: Please allow this letter to serve as a request for a hearing on Defendant's Motion for Forensic and DNA testing filed pro se by my client Daniel Dominguez. In addition, I would request a hearing on the Motion to Withdraw and Request for Appointment of Counsel that was previously filed by my office. Both matters could be set at the same time. Lastly, please allow this letter to serve as a request for my client to be bench warranted from the Nathaniel Neal Unit to Abilene so that he may attend these hearings in person. Thank you for your attention to this matter. Very truly yours, Alex B. E^ssea Abilene Office Anson Office 802 Mulberry 311N. Commercial Abilene, Texas 79601 Anson, Texas 79501 t^VvV* \ CAUSE NO. 13674-B %J Lfl[ U ^^ STATE OFTEXAS § 104thDIST^^G^^F) ?^ DANIEL VASQUEZ DOMINGUEZ §§ TAYLOR C'ViJiERK TAYUJR_C^UNTY; tWxA5(4 s MOTION TO WITHDRAW, REQUEST FOR APPOINTMENT OF COUNSEL, AND NOTICE OF HEARING TO THE HONORABLE JUDGE OF SAID COURT: Now comes Alex Eyssen, Movant, and brings this Motion to Withdraw, Request for Appointment of Counsel, and Notice of Hearingand in support thereof shows: 1. Movant is the court-appointed attorney ofrecord for Daniel Vasquez Dominguez. 2. Good cause to withdraw exists as specified below: a. The attorney of record, Alex Eyssen, is closing his law firm effective October 1, 2012. It is neither expected nor anticipated that the above-referenced case will be resolved by said date. Thus, the undersigned respectfully requests that he be allowed to withdraw and that another attorney be appointed to handle the above-referenced case. 3. The following settings exist in the above-reference case: a. Hearing on the Motion to Withdraw: September^, 2012 at 4:00 p.m. 4. This request is not sought for delay^ NOTICE TO CLIENT A copy of this motion has been delivered to Daniel Vasquez Dominguez. The last known mailing address of Daniel Vasquez Dominguez is # 1355966 c/o Nathaniel Neal Unit, 9055 Spur 591, Amarillo, Texas 79107. NOTICE OF HEARING This Motion is set for hearing at 4:00 p.m. on September 21, 2012 in the 104th District Court in and for Taylor County. PRAYER WHEREFORE, PREMISES CONSIDERED, Movant prays that the Court will grant his motion to withdraw and appoint substituted counsel. Respectfully submitted, LAW OFFICE OF ALEX B. EYSSEN, PLLC Post Office Box 3321 Abilene, Texas 79604 Tel: (325) 267-6030 Fax:(325)267-6031 By: A*^ Alex B. Eys0R State Bar No. 24036542. Attorney for Defendant CERTIFICATE OF SERVICE This is to certify that on 1y2.i& 2012, a true and correct copy ofthe above and foregoing document was served on the Taylor County District Attorney's Office via hand delivery. JLz Alex Eyssen/"^ eaAwa- -* S> ay l CW' CAUSE NO. 5034-CX % flfjft U IN THE INTEREST OF § 7-. /te^jffiSjteB^CT COURT OF X 6 -^ 0/? ^#*** DIANXfLORES, § ^^TAl^QRZJ(£^rrY, TAl^QR5(^JpNTY, TEXAS § § 326TH JUDICIAL DISTRICT PERMANENCY PLAN AND PERMANENCY PROGRESS REPORT The Texas Department of Protective and Regulatory Services presents this report to the Court to enable the court to review both the permanency plan for the children the subject of this suit and the progress that has been made toward ensuring that a final order consistent with this plan is renderedbeforethe date for dismissal of the suit. The Department was appointed Temporary Sole Managing Conservator of the children on -> May22,2000. The children came into conservatorship for the following reasons: Diana Fiores made an outcry that her stepfather, Daniel Dominguez raped her four times. Initially the investigator asked the mother to allow Diana to live with her grandmother until the investigation was completed. Mother and stepfather did not want her to be away from home so the child was removed from the home. Daniel Dominguez was arrested aiid Diana was allowed to go back to the home to complete summer school. Diana was to have no contact at all with Mr. Dominguez and she would be removed if he got out of jail and moved back home. 1. SUBJECT CHILDREN NAME OF CHILD DATE OF BIRTH TYPE OF CURRENT PLACEMENT DIANA FLORES 11/09/85 OWN HOME PERSONS RECEIVING THIS REPORT FATHER: Deceased MOTHER: Maria Fiores 873 Sycamore St. Abilene, TX 79602 PERMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME: PAGE 2 ATTORNEY FOR PETITIONER: Assistant District Attorney Glenna Cordray 300 Oak St. Abilene, Texas 79602 ATTORNEYAD LITEM FOR THE CHILD. Stanley Smith Attorney at Law P. O. Box 3579 Abilene, Texas 79604 ATTORNEY GARDIAN AD LITEMFOR CHILD Shane Deel Attorney at Law 1057 S. 3rd Abilene, Texas 79602 A COPY HAS 4LSO BEEN PROVIDED TO THE FOSTER PARENT OR DIRECTOR OF GROUP HOME OR INSTITUTION WHERE EACH CHILD IS RESIDING RECOMMENDATION FOR DISMISSAL OR CONTINUATION OF SUIT The Department recommends that this suit be continued. The Court: • has not yet set a dismissal date for this suit, and the Department recommends that the date for dismissal of this suit be. . —IU has pieviuusly sct-tfae-dismiissal dale fui Lhis suit as .Mgy:2S^l2uui- which is consistent with the current permanencyplan. • has previously set the dismissal date for this suit as which is not consistent with the current permanency plan. The Court has not yet granted a dismissal extension under TFC § 263.401 and the Department recommends that anew dismissal date be set for _. An extension of the date for dismissal of this suit under TFC § 263.401, has not been previously granted inthis case. SERVICE PERMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME: PAGE 3 All parties have been served. COMPLIANCE WITH TEMPORARY ORDERS AND WITH THE SERVICE PLAN 5.1 SUMMARY OF ACTIONS TO BE ACCOMPLISHED BY PARENTS Maria and Diana Fiores were to have a psychological evaluation. Home studies were to be done on family members interested in having Diana live with them. Maria, Diana, Cindy and Melinda will all participate in individual counseling and family therapy as necessary. 5.2 EVALUATION OF COMPLIANCE Maria and Diana have both had psychological evaluations. Home studies were ordered on Maria's grandmother, but the grandmother would miss her appointments and did not cooperate with the worker doing the home study. They all attended counseling until B.J. Mayben dismissed Cindy and Melinda from care and later dismissed Maria. Diana continued counseling until B.J. Mayben dismissed her —^ because she would not discuss the sexual abuse. Each time the counselor tried to get her to work through the problem of the sexual —^ abuse, she would change the subject. Diana told worker that her mother and sisters did not try to influence her in regard to the court case. However, Diana refused to testify and told this worker that she did not want to see Daniel Dominguez go to jail because it would upset her mother and sisters. Maria, Cindy and Melinda have telephone calls with Mr. Domiiigue/. Diana hasTnnnmtgcfw^lratsofeverwKh Mrr Dominguez. —^ Diana Fiores is pregnant and due the first of June. She has prenatal care. i" 5.3 SUMMARY AND EVALUATION OF ACTIONS TAKEN BY THE DEPARTMENT PURSUANT TO COURT ORDERS AND THE SERVICE PLAN, INCLUDING REASONABLE EFFORTS TO PURSUE THE PERMANENCY PLAN FOR THE CHILDREN. The Department has arranged and paid for psychological evaluations for both Diana and Maria Fiores. The Department has arranged and PERMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME: PAGE 4 paid for counseling for Diana and Maria Fiores and Cindy and Melinda Dominguez. Maria Fiores has not completed parenting classes as ordered by the court but has discussed parenting issues with therapist. 5.4 PROGRESS MADE TOWARD ALLEVIATING OR MITIGATING THE CAUSES FOR THE CHILDREN'S REMOVAL FROM THE HOME Daniel Dominguez received six years probation and is now currently living with his sister at 3649 Swenson her in Abilene. There is still a protective order in affect where Mr. Dominguez is not to go within 200 yards of the house at 873 Sycamore or the children's schools. Maria states that she will not allow him to move back into the home. Maria and Diana have attended counseling. This worker has not seen any discourse between the mother and Diana or Diana and her sisters. 6. EVALUATION OF THE CHILDREN'S CURRENT PLACEMENT 6.1 PLACEMENT HISTORY Name Type of placement Date placed Diana Fiores Basic Care foster home 05/22/00 Diana Fiores Home 06/21/00 6.2 APPROPRIATENESS AND SAFETY OF CURRENT PLACEMENT AND PROGRESS IN MEETING CHILD'S NEEDS Diana is in the most appropriate placement, her home. It is safe as long as Daniel Dominguez does not return home. 6.22 Least Restrictiveness The placement is the least restrictive because she is placed in the home with her mother and sisters. 6.222 APPROPRIATENESS OF ANY INSTITUTIONAL PLACEMENT N/A 6.23 Close Proximity PERMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME: PAGE 5 N/A 6.232 APPROPRIATENESS OF ANY OUT-OF-STATE PLACEMENT N/A 6.3 CONTINUED NEED FOR PLACEMENT IN SUBSTITUTE CARE N/A DESCRIPTION OF THE CHILD'S CURRENT PERMANENCY PLAN(S) The permanency plan for the child is: \E1 Family Reunification • Permanent Placement with Relative • Transfer of Conservatorship • Adoption • Permanent Placement with Non-Reiative • Transfer of Conservatorship • Adoption • Foster carewith long term commitment from foster family or facility • Foster carewithno long term commitment from foster family or facility • Other living arrangement: [describe] • Independent Living (child will be able to live on his or her own and successfully manage his or her personal affairs.) • Long Term Care in Adulthood (placement in an institution as an adult due to a disability) • with guardianship • without guardianship The approximate date for the achievement of this permanency plan - child is currently living in the home. PERMANENCY PLAN/PERMANENCY PROGRESS REPORT NAME: PAGE 6 8 PLANS, SERVICES, AND FURTHER TEMPORARY ORDERS NEEDED TO MEET THE CHILD'S NEEDS FOR SAFETY AND PERMANENCY AND TO ENSURE AN APPROPRIATE FINAL ORDER 81 IF THE PLAN IS REUNIFICATION, THE STEPS TO BE TAKEN TO HAVE THE CHILD RETURN HOME AND REACH A LEGAL RESOLUTION REGARDING THE CASE. Diana is currently living with her mother. Daniel Dominguez received six years probation and is currently living with his sister at 3649 Swenson. 8.5 ADDITIONAL SERVICES AND ORDERS RECOMMENDED N/A RESPECTFULLY SUBMITTED BY: DATE 3-4 -o r DATE Case Name: Fiores,Maria Case #: 24046532 FAMILY SERVICE PLAN Cover Sheet II: Family Preservation IDENTIFYING INFORMATION Narne(s) of Parents Date of Participation Date Plan Completed Maria Fiores , Daniel Vasquez Dominguez 2/21/2001 3/5/2001 Child(ren)'s Name(s) , Month/Year of Next Review Diana Fiores , Melinda Dominguez , Cindy Dominguez 6/2001 PURPOSE OF THIS PLAN * , j»ntiB^Jte*weh«»©ntyi^^^j^rfan^,or. Yqa^nd^aurWfter • Maria Fiores will see that Diana follows medical advice regarding her pregnancy. She will make sure that Diana is enrolled in WIC and follows her prenatal instructidnTfrom the doctor. • Parent will demonstrate the ability to protect child from future abuse, and will show concern for child's"future safety. EMERGENCY CONDITIONS PRS has determined that one of thefollowing emergency conditions continues to exist for this case and, therefore, services continue to be necessary: 1) Achild is at risk ofabuse or neglect, as determined by PRS; ^r^chilcrh^b^eTrremDveTrfrc^ — 3) Achild formerly in PRS care is at-risk of being returned to PRS care. ' Tasks and Services for the Family 3/6/2001 • TX Dept. of Protective and Regulatory Services page: 3 Case Name: Flores.Maria Case #: 24046532 FAMILY SERVICE PLAN Paren^winemonstrate the ability to protect child from future abuse, and will show concern for child's future safety. II cPS/Other Service Family Task Discuss with family Cooperate Maria will cooperate with the Protective Order and Worker will discuss with the family the she will not allow Daniel Dominguez to come to the consequences if Daniel Domingues breaks the house at 823 Sycamore ortake Diane anywhere Protective Order. Daniel Dominguez is present. Court Ordered: Yes Court Ordered: Yes Beginning andEnding Dates (and/or Frequency) Beginning and Ending Date (and/or Frequency) J 03/01 to 06/01 03/01 to 06/01 Method of Evaluation: Discussion with family Paren^wTdemonstrate the ability to protect child from future abuse, and will show concem for child's future safety. . . CPS/Other Service Family Task Cooperate Monitor and support Maria Fiores will not allow any contact of any kind Worker will monitorthe home for compliance and between Daniel Dominguez and Diana Fiores, support the family. including phone calls or letters. Maria Fiores will not allow Daniel Dominguez to live in the same home with Diana Flores3 She will report to CPS if Daniel Dominguez breaks the Protective Order. Court Ordered: No Court Ordered: Yes Beginning andEnding Dates (and/or Frequency) Beginning and Ending Date (and/or Frequency) 03/01 to 06/01 ' 03/01 to 06/01 Method of Evaluation: Monitoring in the home and discussion with family Goal Description: Maria Fiores will see that Diana follows medical advice regarding herjDregnancy. She will make sure that Diana is enrolled in WiC and follows her prenata instructions from the doctor. C PS/Other-Service- -Family Task Get medical help Discuss with family Maria Fiores will see that Diana Fiores has medical Worker will discuss with the family the different help through out her pregnancy. programs that Diana can access to help her through her pregnancy. Court Ordered: No Court Ordered: No Beginning and Ending Dates (and/or Frequency) Beginning and Ending Date (and/or Frequency) 03/01 to 06/0.1 ' •"' 03/01 to 06/01 __ Method of Evaluation: contact with the doctor TX Dept. of Protective and Regulatory Services Page: 4 Printed: 3/6/2001