Haynes, Richard v. State

Affirmed and Opinion filed _____________, 2003 Affirmed and Memorandum Opinion filed October 7, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-01195-CR ____________ RICHARD HAYNES, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 414,238 M E M O R A N D U M   O P I N I O N Appellant Richard Haynes appeals from the trial court’s order denying his post-conviction motion for DNA testing. He was convicted of aggravated sexual assault of a child and the trial court assessed punishment at fifty years’ imprisonment.[1] Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm. In his first four issues, appellant argues the trial court violated his constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution by (1) conducting a final hearing on the motion without his presence, and (2) denying him the opportunity to confront and cross-examine witnesses. The State contends appellant’s issues should be overruled because the trial court found appellant was present when it considered the motion. We agree with the State’s contention. Even had appellant not been present at the hearing, however, his contentions are without merit. Our sister court in Cravin v. State, 95 S.W.3d 506 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d), rejected arguments similar to those advanced here. Noting that an applicant for DNA testing is not entitled to any sort of hearing, see Rivera v. State, 89 S.W.3d 55, 58 (Tex.Crim.App.2002), cert. denied, --- U.S. ----, --- S.Ct. ----, 72 U.S.L.W. 3146 (2003), the Cravin court concluded that a Chapter 64 proceeding does not implicate rights under the respective confrontation clauses because it need not involve witnesses or accusations against the applicant. See 89 S.W.3d at 509-10. Rather, as a collateral inquiry into the validity of the conviction, a Chapter 64 proceeding entails a motion made by the applicant followed by the State’s non-accusatory required response. See id. at 510. Further, Chapter 64 proceedings are not fundamentally unfair and do not violate the appellant’s federal and state due process rights. Id. Accordingly, appellant’s first four issues are overruled. In his fifth issue, appellant argues the trial court erred in considering affidavits submitted by the State since those documents constitute inadmissible hearsay. But his contention assumes a Chapter 64 proceeding is governed by the rules of evidence. The Court of Criminal Appeals has held it is not. See Rivera, 89 S.W.3d at 58-59. Indeed, the Rivera court noted, “Nothing in Article 64.03 requires a hearing of any sort concerning the trial court’s determination of whether a defendant is entitled to DNA testing.” Id. The statute specifically contemplates a post-conviction proceeding with submissions of affidavits from the applicant and a written response from the State, rather than an evidentiary hearing. See Tex. Code Crim. Proc. arts. 64.01(a), 64.02(2)(B). As part of its required written response in this matter, the State submitted the affidavits and the trial court did not err in its consideration of them. Appellant’s fifth issue is therefore overruled. In his sixth issue, appellant argues the trial court erred in denying his motion for DNA testing since the State failed to establish whether the evidence was in existence and in the possession of the State. This claim was also raised and rejected in Cravin. See 95 S.W.3d at 511. Similarly, the State’s response here stated that neither the Property Room of the Houston Police Department (“HPD”), the HPD Crime Laboratory, nor the Harris County District Clerk’s Office was in possession of any evidence in this matter. Absent an indication that an agency other than HPD possessed evidence in the case at any time, the State's general response was sufficient. The 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. Ultimately, however, this Court need not address appellant’s contention as the trial court’s judgment denying his motion can be affirmed on another ground. According to Article 64.03(a)(2)(A), before granting the applicant’s motion a convicting court must find the applicant has established by a preponderance of the evidence that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” The trial court here found appellant failed to establish the existence of such a reasonable probability. Appellant does not challenge this finding on appeal. Neither his brief nor his motion explains how the test results could prove his innocence.[2] Therefore, since appellant failed to satisfy at least one of the requirements listed in Article 64.03, the trial court did not err in denying his motion for DNA testing. Accordingly, appellant’s sixth issue is overruled. The judgment of the trial court is affirmed. /s/ Scott Brister Chief Justice Judgment rendered and Memorandum Opinion filed October 7, 2003. Panel consists of Chief Justice Brister and Justices Anderson and Seymore. Do Not Publish –– Tex. R. App. P. 47.2(b). [1] The First Court of Appeals affirmed appellant’s conviction. See Haynes v. State, 727 S.W.2d 294 (Tex. App.—Houston [1st Dist.] 1987, no pet.). [2] Appellant’s brief does not even mention how DNA testing relates to proof of his innocence. His motion merely makes conclusory statements that the tests would either “prove he is not guilty” of the offense or “exclude [him] as the person involved in the offense.” Appellant has thus failed to carry his burden.