in the Interest of Keshawn Deonte Daniels, Justin E. Daniels, Chelsea LaShaun Thompson and Quinten Raye Cowley, Children

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02 -00055 -CV ______________________________ IN THE INTEREST OF KESHAWN DEONTE DANIELS, JUSTIN E. DANIELS, CHELSEA LASHAUN THOMPSON, AND QUINTEN RAYE COWLEY, CHILDREN On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 02C0321-202 Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N Dorothy Virginia Thompson Battle (Battle) appeals from an order terminating her parental rights to her four children. Each child was represented by counsel at the termination hearing, as was Battle and the three fathers of her children. On March 13, 2002, the trial court signed an order terminating the parental rights of all involved. The Texas Department of Protective and Regulatory Services has filed a motion to dismiss the appeal. (1) Appeals from termination proceedings are controlled by Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2002). As provided by that statute, this is an accelerated appeal under Tex. R. App. P. 26.1(b). The Notice of Appeal was therefore due within twenty days after the judgment was signed, on April 2, 2002. The Notice of Appeal in this case was filed on April 11, 2002, and was therefore untimely. Battle had filed her Notice of Appeal nine days after the deadline prescribed by Tex. R. App. P. 26.1(a) and six days before expiration of the period in which an extension could be sought. See Tex. R. App. P. 26.3 (stating one can move to extend time to perfect appeal if he or she acts within fifteen days after expiration of deadline for filing notice). The rule also requires that the party file both the notice of appeal (in the trial court) and a motion to extend time (in the appellate court) in order to obtain an extension of time from this court to file the notice of appeal. The Texas Supreme Court has held that a motion for extension of time is "necessarily implied" when an appellant "acting in good faith" files a notice of appeal during the fifteen-day grace period, but fails to file the motion to extend time. Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998), applying Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (analyzing filing of bond under earlier version of rules). Verburgt implies a motion for extension of time for filing a late notice of appeal. It does not eliminate the need to provide a reasonable explanation for the late filing. Cotton v. Cotton, 57 S.W.3d 506, 509 (Tex. App.-Waco 2001, no pet. h.); see, e.g., Chilkewitz v. Winter, 25 S.W.3d 382, 383 (Tex. App.-Fort Worth 2000, no pet.) (per curiam); Indus. Servs. U.S.A., Inc. v. Am. Bank, N.A., 17 S.W.3d 358, 359 (Tex. App.-Corpus Christi 2000, no pet.) (per curiam); Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Under the Court's analysis of the rules, Battle was obligated to show this court that the failure to timely file occurred in spite of her good faith and reasonably explain why her appeal was not timely perfected. Jones, 976 SW.2d at 677; Miller v. Greenpark Surgery Ctr. Assocs., 974 S.W.2d 805, 807-08 (Tex. App.-Houston [14th Dist.] 1998, no pet.). In this case, despite filing the Notice of Appeal, Battle did not attempt to show she was acting in good faith, nor did she reasonably explain the need for an extension, as is also required by Tex. R. App. P. 10.5(b)(1)(C) and 26.3(b). Battle also did not attempt to provide the necessary information after the State moved to dismiss the appeal for want of jurisdiction. Under these facts, the requirements set out by the Rules of Appellate Procedure to confer jurisdiction on this court have not been met. See Kidd v. Paxton, 1 S.W.3d 309, 312 (Tex. App.-Amarillo 1999, no pet.). The appeal is dismissed for want of jurisdiction. Ben Z. Grant Justice Date Submitted: June 26, 2002 Date Decided: June 27, 2002 Do Not Publish 1. We requested a response from opposing counsel, but none was received. The motion by the State refers both to the untimeliness of the Notice of Appeal and to Battle's failure to file a required statement of point or points on which she intended to appeal as required by Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2002). se to the State's motion on August 2, 2002. One week later, the trial court granted the State's motion after conducting a hearing on the issue. The trial court then held that a wealth of inculpatory evidence existed, including eyewitness testimony and testimony from the defendant's wife establishing the defendant's identity as the perpetrator. Based on that evidence, the trial court found DNA testing would not serve to exculpate Jacobs or dissuade the State from prosecuting the case. Accordingly, the trial court denied Jacobs' motion for post-conviction DNA testing. Jacobs filed his notice of appeal to this Court on September 12, 2002. II. Jurisdiction The State contends this Court lacks jurisdiction to consider the merits of Jacobs' appeal. The trial court signed the order denying Jacobs' motion for DNA testing on August 12, 2002. The order was filed with the district clerk on August 13, 2002. Jacobs filed his notice of appeal on September 12, 2002-thirty-one days after the order was signed and thirty days after it was filed. Unless a motion for new trial is filed, an appellant must file a notice of appeal within thirty days of the trial court's judgment to vest jurisdiction over the case with the appellate court. Tex. R. App. P. 26.2(a). The Amarillo Court of Appeals recently addressed a similar case involving procedural jurisdiction. In In re Marriage of Gary, No. 07-01-0466-CV, 2002 WL 1806800, at *1 (Tex. App.-Amarillo Aug. 7, 2002, no pet. h.) (unpublished order on jurisdiction), the appellant filed his notice of appeal one day late, although the certificate of service predated the filing deadline. The Amarillo court, citing Verburqt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) said, "[a] motion for extension of time is implied when an appellant acting in good faith files, within the 15 day period in which the appellant would be entitled to move to extend the filing deadline, documents showing a bona fide intent to appeal." Gary, 2002 WL 1806800, at *1. The Amarillo court then granted the implied motion for extension of time to file a notice of appeal, thereby conferring the court with jurisdiction to consider the merits of the appeal. In the case now before this Court, Jacobs' notice of appeal was filed by the district clerk one day after the thirty-day deadline. The certificate of service states the notice was mailed two days before the deadline. "A document received within ten days after the filing deadline is considered timely filed if . . . it was deposited in the mail on or before the last day for filing." Tex. R. App. P. 9.2(b)(1). Under the mailbox rule, we deem Jacobs' notice of appeal timely filed. Alternatively, granting the implied motion for extension of time to file the notice of appeal would be sufficient to confer jurisdiction over the case with this Court. Jurisdiction exists for us to reach the merits of Jacobs' appeal. III. DNA Testing A. Standard of Review A trial court's denial of a motion for post-conviction DNA testing is reviewed under a bifurcated process. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Green v. State, No. 04-02-00221-CR, 2002 WL 31694228, at *1 (Tex. App.-San Antonio Dec. 4, 2002, pet. filed). We afford almost total deference both to the trial court's determination of historical fact and to its application of law-to-fact issues that turn on credibility and demeanor. Rivera, 89 S.W.3d at 59; Green, 2002 WL 31694228, at *1. But we review de novo all other application of law-to-fact issues. Rivera, 89 S.W.3d at 59; Green, 2002 WL 31694228, at *1. This de novo review usually includes the ultimate issue in post-conviction DNA testing cases, "whether a reasonable probability exists that exculpatory DNA would prove innocence." Rivera, 89 S.W.3d at 59. Citing Rivera, Jacobs contends that the scope of the evidence an appellate court may review is limited to the evidence relating to the motion and/or hearing on the motion for DNA testing. We do not read Rivera to either directly or indirectly so narrowly limit the scope of our review. Undoubtedly, the trial court would have before it the court's entire file when ruling on a motion for post-conviction DNA testing. Because this case had been previously appealed, the trial court had access to testimony in the reporter's record. (4) In short, the trial court itself would not be limited to examining evidence offered by the parties during post-conviction litigation. If we are to review de novo those issues of fact that do not turn on witness credibility or demeanor, we must have available the same evidence to which the trial court had access. See id. To hold otherwise would thwart our ability to effectively review these types of cases. Second, requiring the nonmoving party-which in DNA cases will usually be the State-to reoffer the entirety of its evidence (so as to counter the movant's claims regarding false identification) would be extremely burdensome and a waste of judicial economy. Such a procedure might turn DNA hearings into quasi mini-trials, complete with sponsoring witness testimony, affidavits of interested parties, and challenges to evidentiary admissibility. Third, a plain reading of the Texas Rules of Appellate Procedure contemplates our ability to supplement the clerk's record with any relevant item that is part of the entire record below. See Tex. R. App. P. 34.5(c)(1). The trial court is usually in the best position to take judicial notice of items already in evidence from previous proceedings, including witness testimony, recorded confessions (written or oral), photographs, or other tangible evidence. See Tex. R. Evid. 201. This Court may also take notice of its own file from the direct appeal of this case. Cf. Tex. Capital Sec. v. Sandefer, No. 06-02-00042-CV (Tex. App.-Texarkana June 27, 2003) (appellate court implicitly taking judicial notice of findings in sister court's opinion in prior appeal between same parties). Accordingly, we do not find the scope of our ability to review the evidence to be limited in the manner suggested by Jacobs. B. Obtaining DNA Testing Under Chapter 64 At oral argument, Jacobs reasoned he should prevail on appeal if he could establish by a preponderance of the evidence that there is a reasonable probability that DNA testing would have created a reasonable doubt among the jury at trial. We do not concur with Jacobs' reasoning. To obtain post-conviction DNA testing, the convicted person must establish by a preponderance of the evidence that a reasonable probability exists that he or she would not have been prosecuted or convicted if "exculpatory results had been obtained through DNA testing." (5) Rivera, 89 S.W.3d at 59 (citing Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(A)(i), (2)(A)). This requirement is not a two-part test. "The convicted person is not required to show both that a reasonable probability exists that the person would not have been prosecuted and that the person would not have been convicted." S.J. of Tex., 77th Leg., R.S. 995 (2001) (emphasis added), <http://www.capitol.state.tx.us/sjrnl/77r/pdf/4-2.pdf>, at *25. Exculpatory evidence is that which tends to free the defendant from blame or accusation or otherwise establish his or her innocence. Black's Law Dictionary 577, 588 (7th ed. 1999). The statutory requirement that testing results be exculpatory is not met if the DNA evidence would "merely muddy the waters." Instead, the evidence must tend to prove the defendant's innocence. Rivera, 89 S.W.3d at 59 (citing Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002)). Stated differently, DNA testing must conclusively outweigh all other evidence of the convicted's guilt. Id.; Thompson v. State, No. 01-02-00253-CR, 2002 WL 31618806, at *3 (Tex. App.-Houston [1st Dist.] Nov. 21, 2002, pet. filed). Jacobs contends, the evidence establishes that the testing could result in evidence of the involvement of a third party: not the victim and not Jacobs. Therefore, had the biological evidence been tested and resulted in evidence of the presence of another person's DNA besides that of the victim (exculpatory evidence), a reasonable probability exists that Jacobs would not have been prosecuted or convicted of aggravated sexual assault. In essence, Jacobs hopes mitochondrial DNA testing will show the hair samples came from a third party. Such evidence, however, would "merely muddy the waters" by demonstrating that a third party had, at some point in time (but not necessarily at the time of the crime), been inside the sleeper compartment of the tractor truck. Such evidence would not, on its own, exonerate Jacobs and thereby support the ordering of a DNA test. See Rivera, 89 S.W.3d at 59; Kutzner, 75 S.W.3d at 439. Accordingly, the evidence before the trial court did not show DNA testing would prove Jacobs' actual innocence. This conclusion might be different if the sexual assault examination had yielded seminal or blood DNA evidence from the perpetrator. However, the presence of a third-party hair on Jacobs' bed linens or clothing not belonging to the victim does not necessarily prove Jacobs' innocence. We hold the trial court did not err by denying Jacobs' motion for post-conviction DNA testing. We affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: June 19, 2003 Date Decided: July 8, 2003 Publish 1. Deoxyribonucleic Acid. DNA is "a nucleic acid that constitutes the genetic material of all cellular organisms and the DNA viruses." Dorland's Illustrated Medical Dictionary 447 (27th ed. 1988). 2. The indictment alleged Jacobs used or exhibited a firearm during the commission of the sexual assault in the sleeping compartment of his tractor truck. 3. Mitochondrial DNA testing involves analyzing the strands of DNA contained in the mitochondria. The mitochondria are "small spherical to rod-shaped components (organelles) found in the cytoplasm of cells, enclosed in a double membrane, with an internal membrane space between the two units, the inner one infolded into the interior of the organelle as a series of projections (cristae)." Dorland's Illustrated Medical Dictionary 1043 (27th ed. 1988). "A single mitochondrion contains 37 genes on a circular mitochondrial DNA, compared with about 35,000 genes contained in the nuclear DNA." Comm. on Sci., Eng'g, & Pub. Policy, The Nat'l Acad. of Sciences, Scientific & Med. Aspects of Human Reprod. Cloning, 267 (2002), <http://books.nap.edu/books/0309076374/html/267.html>. 4. The trial court's judgment reflects it reviewed the reporter's record of the trial before issuing its judgment on the State's motion for reconsideration. In support of its opposition to further testing, the State's motion to reconsider had incorporated references to specific portions of the reporter's record. 5. Additionally, "Article 64.03(a) only permits a trial court to order DNA testing if the court finds that identity was or is an issue in the case." Green v. State, No. 04-02-00221-CR, 2002 WL 31694228, at *1 (Tex. App.-San Antonio Dec. 4. 2002, pet. filed) (citing Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B) (Vernon Supp. 2003)). The parties in this case, however, agree that identity was and is an issue. Therefore, we need not address this element of the movant's burden of proof. See Tex. Code Crim. Proc. Ann. art. 64.03(a)(1)(B).